IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8290 OF 2008 Shri Gajanan Dattatray Wavikar ...Petitioner V/s. Shri Prakash Hemraj Bafna ...Respondent ...... Mr.N.V.Gangal for Petitioner. Mr.Sandeep K.Shinde for Respondent. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. MARCH 24, 2009. MARCH 24, 2009. MARCH 24, 2009. P.C. 1. Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith, by consent. Mr.Shinde waives notice for Respondent. 3. As short question is involved, Petition is taken up for final disposal forthwith, by consent. 4. This Petition under Article 227 of the Constitution of India takes exception to the : 2 : Judgment and Order passed by the Civil Judge, Senior Division, Palghar dated 4th November 2008 below Exhibit 10 in Summary Suit No.1/2008. The operative order which is assailed in the present Petition reads thus: "O R D E R 1. Application for summons for Judgment stands rejected. 2. On defendant’s depositing a sum of Rs.2,50,000/- in this Court within a period of eight weeks from the date of this order, leave to defend is granted. Defendant has to file his written statement within one week thereafter. 3. If defendant failed to deposit a sum of Rs.2,50,000/- as stated herein above, within stipulated period, plaintiff is entitled for summons for Judgment. 4. Cost in case." 5. According to the Plaintiff, the Plaintiff had given hand loan to the Defendant in the sum of Rs.7,00,000/- (Rupees Seven Lakhs). The cheque in question on the basis of which Summary Suit has been filed was issued by the Defendant towards repayment of the said hand loan. According to the Plaintiff, therefore, the defence of the Defendant : 3 : is bogus and false. Indeed, the Court below in Paragraph 8 of the impugned Judgment has proceeded to observe thus: "8/- The defence taken by defendant that brother of plaintiff has misused the four cheques which were kept in the drawer of the office of partnership firm is not a bonafide or reasonable defence. Plaintiff has nothing to do with the partnership business of defendant and other partners. Defendant kept mum after receipt of notice from plaintiff. He has not taken any action against the brother of plaintiff. Thus, the defence of defendant is sham illusory and practically moonshine. However, this Court must show some mercy to defendant by enabling him to try to prove his defence by filing written statement but at the same time, plaintiff must be protected by imposing some conditions on the defendant, I, therefore, answer point No.1 in affirmative and point No.2 accordingly." 6. The question is: whether the Plaintiff in the first place has been able to establish the fact that he had given hand loan of Rs.7,00,000/- (Rupees Seven Lakhs) to the Defendant. That is the basis on which the Plaintiff asserts that the cheque was in respect of repayment of that hand loan towards legally enforceable liability. The Trial Court has not addressed itself to this aspect : 4 : at all. Indeed, the Plaintiff is required to establish the above fact to only prima facie convince the Court that there was genuine transaction between the Plaintiff and the Defendant, in relation to which the cheque in question was issued by the Defendant. It is only on recording finding on that fact, would the Trial Court be justified in rejecting the defence of the Defendant as bogus and false and thereafter making the Summons for Judgment absolute. 7. In other words, if the Plaintiff is unable to make good this plea taken in the Plaint, it presupposes that the Defendant has raised a triable issue in the light of defence taken in reply filed to oppose the Summons for Judgment. In such a case, the question of allowing the Summons for Judgment would not arise at all, in the fact situation of the present case, nor it would be a case for passing conditional order in that situation. 8. The appropriate course, to my mind, is to set-aside the impugned decision and to relegate the : 5 : parties back before the Trial Court to reconsider the entire matter afresh on its own merits in accordance with law. All questions on merits are left open. The parties shall appear before the Trial Court on 27th April 2009 when the Trial Court shall proceed to hear the Summons for Judgment Exhibit 10 on its own merits after giving opportunity to both the sides to advance their respective stand. 9. Petition disposed of on the above terms. A.M.KHANWILKAR, J.