1 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 346 OF 2007 IN SUMMARY SUIT NO. 1150 OF 2007 Digital Canvas (India) Ltd. .. Plaintiff V/s In House Production Pvt. Ltd. .. Defendant Mr.Sunil Patel i/b Sunil & Co. for the plaintiff. Mr.Vishal Kanade i/b nil Menon & Associates for the defendant. CORAM : D.G. KARNIK, J. DATE : 11TH JUNE 2009 P.C. : 1. Heard. 2. This summons for judgment is taken out by the plaintiff in a suit filed for recovery of the money. 3. The plaintiff was carrying out the job work for the defendant in its production of films. Their relationship was old and the work was being done 2 for many years. According to the plaintiff, an amount of Rs.4,35,795/- is due and payable by the defendant to the plaintiff. As the defendant has failed and neglected to make the payment of last outstanding, the plaintiff has filed this suit for recovery. 4. By filing an affidavit in reply, the defendant has denied the liability and contested the summons for judgment. 5. In March 2004, the defendant owed to the plaintiff Rs.13,00,000/-. On 19th March 2004 the defendant wrote a letter to the plaintiff thanking for its support and promised to make the payment in instalments of Rs.4,00,000/-. By a further letter dated 22nd March 2004, the defendant admitted that it owed to the plaintiff the sum of Rs.13,00,000/- which he promised to pay in three instalments of Rs.4,00,000/- each in the months of April, May and June 2004 and last instalment of Rs.1,00,000/- in the month of June 2004. 6. Learned counsel for the defendant however submitted that these were the old transactions and those dues have already been paid of. In the year 2007, when the suit was filed, nothing except Rs.40,924/- is due and payable by the defendant. 7. Prior to the suit, the plaintiff had approached the defendant for 3 settlement of the matter through the Association of Motion Pictures Studios. After considering the case of both sides, Association of Motion Pictures Studios directed the defendant to pay to the plaintiff Rs.2,31,000/- vide letter dated 6th January 2007. The amount was not paid. Thereafter, the defendant through its advocate wrote a letter dated 2nd February 2007 to the Association of Motion Pictures Studios and endorsed a copy thereof to the plaintiff. In the said letter, the defendant has admitted the current dues of Rs.40,924/-. The defendant has further admitted past dues to the extent of Rs.1,40,000/-. By that letter, the defendant offered to pay Rs.1,80,924/- to the plaintiff. It is worthy to note that the defendant had also issued the cheques for Rs.1,40,000/- and Rs.40,924/- to the plaintiff on account of its admitted liability. Both the cheques were returned by the defendant as the same were outdated. In my view, the liability to the extent of Rs.1,80,924/- is admitted by the defendant. As regards the balance of the liability, triable issues arise. 8. Proviso to Sub-rule (5) of Rule 3 of Order 37 of the Code of Civil Procedure reads as follows: "Provided that where a part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit shall not be granted unless the amount so admitted to be due is deposited by the defendant in the court." 4 As, in my view, the defendant has admitted the liability to the extent of Rs.1,80,924/- firstly by its letter dated 2nd February 2007 and secondly by issuing two cheques for Rs.1,40,000/- and Rs.40,924/- to the plaintiff both of which were returned by the plaintiff to the defendant on account of being out of date. Hence, I pass the following order:- ORDER (a) The defendant is granted conditional leave to defend the suit subject to deposit of Rs.1,80,924/- in this Court within 8 weeks. On such deposit, the suit shall stand transferred to the list of commercial causes. The defendant shall file its written statement within 10 weeks. (b) On deposit of the amount by the defendant, the plaintiff is permitted to withdraw the same by furnishing security to the satisfaction of the Prothonotary & Senior Master. (c) The summons for judgment is disposed of. (D.G. KARNIK, J.)