JUDGMENT :

The petitioner herein is challenging the order dated 24 August 2022, passed by the Judge, City Civil Court at Bombay in Summons for Judgment No.38 of 2017, filed by the Respondent (Original Plaintiff). The Petitioner herein is the Defendant in the suit, who has been granted conditional leave to defend the suit on depositing entire principal amount of Rs.32,47,333/- (Rs. Thirty Two Lakhs Forty Seven Thousand Three Hundred and Thirty Three only), within six weeks from the date of order.

2. The brief facts of the present case can be summarised as under :

(i) The petitioner herein is referred as “defendant” and respondent as “plaintiff” as per their origin all status for the sake of convenience and better understanding of the facts of the case. The original plaintiff is engaged in banking business in India. The Plaintiff carries on the business pursuant to the authorization given by the Reserve Bank of India (RBI) under the Payment and Settlement Systems Act, 2007, as a “Payment System Provider”. The Plaintiff enters into an arrangement with the Merchants in India. While entering into such arrangement with the Merchant, a Card Acceptance Agreement with certain terms and conditions is entered by the Merchant. The Bank thereafter makes payment to the Merchant in accordance with the Payment Plan chosen by the Merchants. It is the case of the plaintiff that on 15 May 2013, the defendant approached the plaintiff and requested for issuance of Merchant card to enable him to accept the American Express Cards from the Credit Card members of the plaintiff. On or about 15 May 2013, the defendant submitted a duly filled and signed Merchant Acceptance Card Form to the plaintiff alongwith the declaration appended to the said Card Acceptance Form. As a result, the defendant was bound by the terms and conditions of Card Acceptance Form. The said express terms and conditions for Card Acceptance Form constitute written contract between the plaintiff and the defendant. Hence, the defendant became one of the Merchant of the plaintiff. Merchant No.FE No.9820089183 has been provided to the defendant, the plaintiff had also entered into a similar arrangement with the Bombay Dyeing and Manufacturing Company Limited with a Merchant No.9820063642. The plaintiff was also required to make payment to the said Bombay Dyeing and Manufacturing Company Limited, as and when “Future Retail Limited” company gave instructions to make payment to the said Bombay Dyeing and Manufacturing Company Limited. The Bank used to make payment to both the companies on the instructions of Future Retail Limited.

(ii) On 26 August 2014, the plaintiff erroneously and inadvertently made payment of sum of Rs.32,47,333/- to the defendant viz. to Merchant SE No.9820089183 in his bank account bearing No.319805040000525 with the Union Bank of of India, Zaveri Bazar Branch by NEFT. Instead of making payment to Bombay Dyeing and Manufacturing Limited holding Merchant No.SE 9820063642. The defendant did not notify the plaintiff about the erroneous payment received by him. Similarly, the Plaintiff also did not detect the said error till 5 August 2015. When the said error was detected by the “Future Retail limited”, while following the UTR No.SIN 01083R8382586, for the confirmation of payment made by the plaintiff on 26 August 2014, to the Bombay Dyeing and Manufacturing Company Limited. It was noticed that the said amount has been erroneously credited to the account of defendant in the Bank account No.319805040000525.

(iii) It is the case of the plaintiff that, the plaintiff had tried to contact the defendant on the given address but the defendant could not be traced. It was also tried on the official Email address, which was furnished by the defendant. Even the said Email returned undelivered. The Plaintiff thereafter issued notice on 7 September 2015, through his advocate calling upon the defendant to return/repay the said amount together with interest at the rate of 24% per annum from