IN THE HIGH COURT OF JDICATURE AT BOMBAY ORDINARY ORIGINA CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 256 OF 2008 IN SUMMARY SUIT NO. 371 OF 2008 Radhemohan Bhavani Prasad Gupta @ Jaiswal ..Plaintiff V. M/s Vasudev Sales Corporation and another .......Defendants Mr. V.K. Lakheda for the plaintiff Mr. A.K. Moiley i/b M/s K.R. Tiwari for the defendants CORAM : A.A. SAYED, J. DATE : 3RD JULY, 2009. P.C. 1 The Summons for Judgment has been taken out by the plaintiffs to enter a Judgment against the defendants for a sum of Rs. 9,00,000/- along with interest till realization. 2 The plaintiff is the Senior Citizen of 77 years of age. The Defendant No.2 is the son of the Plaintiff. The Defendant No.1 is the proprietary concern of the Defendant No.2. It is the case of the plaintiff that he had entered into the MOU with the Defendant No.2, who is his son. Under the MOU dated 21-11-2005 he had paid an amount of Rs. 9 lacs to the Defendant No. 2 and the Defendant No.2 had agreed to give 1/4th share of the profit of the business carried out by the Defendant No.2 and further it was agreed that the plaintiff shall be paid remuneration of Rs. 2,500/- p.m. till the plaintiff is alive. As per the terms of the said MOU it was agreed that the defendant No. 2 would take care of the plaintiff till his death and will provide food, shelter and any other things which are necessary for living without any trouble or nuisance to the plaintiff and in case of any default or breach, the plaintiff may make claim or demand and may take action against the defendant No.2. It is alleged by the plaintiff that defendant No.2 has thrown him out from the residential premises which he was occupying along with defendant No.2 and he had filed a Misc. Application under section 125 Cr.P.C. for maintenance and that the Family Court has passed order on 15th August, 2007,whereby the defendant No.2 was directed to pay Rs. 5,000/- per month to the plaintiff. Pertinently, one of the contentions of the defendant No.2 in his reply before the Family Court was that he was not the son of the plaintiff. 3. Thereafter the defendant No.2 has filed an appeal in this Court and by the order dated 12th June, 2009, the Division Bench of this Court dismissed the appeal as not maintainable. 4 In the reply filed by the defendant No.2, the receipt of the said amount of Rs. 9 lacs is not denied under the MOU. It is alleged in his reply that the plaintiff has received substantial amount from the defendant No. 2 and the plaintiff with malafide intention has misused the MOU. It is further stated that the matter would require evidence. The learned Counsel for the Defendant No.2 submitted that under MOU there is no promise to pay the amount and that the suit is not maintainable as Summary Suit and triable issues are involved entitling the Defendant No.2 for leave to defend. 5 I have considered the rival contentions of the parties. The MOU clearly spells out that the plaintiff can make a demand against the defendant No.2, in case of default and/or breach of the terms and conditions of the MOU and therefore, the defendant No.2 is not right in contending that the suit is not maintainable as a summary suit. The MOU is not disputed. Neither is the amount given in the MOU is disputed. There is nothing on recored to show that certain amounts were paid by the Defendant No. 2 to the Plaintiff as suggested by the Defendant No. 2 in his reply. Considering the facts and circumstances of the case, in my view there is no substantial defence made out by the defendant No.2. However, in the facts of the case, I am not inclined to completely debar the defendant No.2 from contesting the suit. Taking an overall view of the matter, in my opinion, the following order would meet the ends of justice: (i) The defendant No. 2 is granted leave to defend the suit subject to his depositing 1/3rd amount of Rs. 9 lacs i.e. sum of Rs. 3 lacs in this Court, within a period of 8 weeks from today. The Plaintiff is permitted to withdraw the amount deposited without any security. (ii) Upon deposit the suit to stand transferred to the list of commercial causes. Written Statement be filed within 30 days of deposit being made. Affidavit of documents be filed within eight weeks. Discovery and Inspection of documents within eight weeks thereafter. (iii) In the event, the aforesaid amount is not deposited, liberty to apply for further orders. 6. Summons for Judgment to stand disposed of accordingly A.A. SAYED J.