: 1 : SJ-267-08=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 267 OF 2008 IN SUMMARY SUIT NO. 1627 OF 2008 Apparel Export Promotion Council .. Plaintiffs v/s. Structured Clothing Co. Pvt. Ltd. .. Defendants ......... Ms. Reshma Ravi i/by R.C. Dalal for the plaintiffs Mr. Vishal Kanade i/by M/s. Negandhi Shah & Himayatullah for the defendants ......... CORAM : R.Y.GANOO, J. DATE : 16th NOVEMBER, 2010 P.C. : 1. Heard learned Counsel on both sides. The plaint narrates as regards passing of an order by Joint Director associated with Ministry of Textiles, Government of India, New Delhi. A perusal of the said order goes to show that the defendants were directed to pay Rs.19,49,920/- on the basis of reasons mentioned in the said order. Certain cheques came to be issued by the defendants all dated 1st June, 2005. Those cheques are found to be dishonoured in November, 2005. The plaintiffs has instituted this summary suit for recovery of Rs.19,49,920/- along : 2 : SJ-267-08=.sxw with the interest and bank charges. Though the plaint refers to dishonour of cheques, there is no specific averment in the plaint to plead that institution of the suit is based on the dishonour of cheques. Some efforts were made by learned Counsel for the plaintiffs to read paragraph 8 and 9 of the plaint in support of the contentions that the suit is based on dishonour of cheques. I do not agree with the said submissions. 2. Paragraph 13 of the plaint indicates that the claim is filed by the plaintiffs on the basis of order by which defendants were directed to deposit certain monies. In the particulars of claim, there is no mention that the amount sought to be recovered is on the basis of cheques which got dishonoured. The particulars of claim mention that Rs. 19,49,920/- is being recovered on the basis of speaking order and the relevant words are “principal amount as per the copy of speaking order”. This, in my view, will mean that the suit is filed for recovery of monies on the strength of speaking order and not for dishonour of cheques. If the plaintiffs intended to institute the suit on the basis of dishonoured cheques, a specific averment ought to have been made in the plaint that the suit is filed on the basis of dishonoured cheques. Even the demand notice dated 21st May, 2007 does not refer to intention of the plaintiffs to file suit for recovery of money on account of : 3 : SJ-267-08=.sxw dishonour of cheques. The plaintiffs informed the defendants that if the monies are not paid pursuant to the said notice, proceedings under Section 434 of the Companies Act for wounding up would be filed. This makes me to hold that the institution of the suit as a summary suit on the strength of pleadings is not maintainable. Hene, defendants are entitled to unconditional leave to defend the suit. Hence, following order is passed to dispose of the summons for judgment. ORDER (i) Unconditional leave to defend the suit is granted to the defendants. (ii) Defendants to file written statement directly in the office on or before 21st January, 2011. (iii) Defendants to serve copy of the same upon advocate for the plaintiffs within 7 days from filing of the written statement in the office. There shall be no order as to costs. (R.Y.GANOO, J.)