Point of Law - Order is contrary to the settled principles of law and once a party has given the cheque for setting right the accounts, then in that case, all such contentions which are not raised at the time of notice being given, in that case, the defence disclosed in the leave to defend affidavit cannot be said to be bonafide and it is nothing, but an afterthought defence, and therefore, in no circumstances, the respondent is entitled to unconditional leave to defend.

ORDER

1. By way of present petition, petitioner has prayed for following reliefs:

“a) The Hon'ble Court be pleased to issue a writ of certiorari and/or any other appropriate writ, order or direction in the nature of certiorari holding and declaring that the impugned order passed below summons for Judgment Exh.11 dated 16th July, 2010 in Summary Civil Suit No.171/2008 is void and illegal and the same is not sustainable in law and the same be quashed and set-aside and this Hon'ble Court be pleased to impose a condition to the extent of amount of the cheque, which was twice issued and which was not realized namely, condition be imposed upon the respondent to deposit before this Hon'ble Court or before the trial Court a sum of Rs.11,54,475/-.

b) Pending admission, hearing and/or final disposal of this petition, the Hon'ble Court be pleased to stay the execution, operation and implementation of the order dated 16.07.2010 passed below Exh.11 Summons for Judgement in Summary Civil Suit NO.171/2008.

c) That by way of interim relief, this Ho'ble Court be pleased to direct the respondent hereinto deposit the cheque ofRs.11,54,475/- in this Hon'ble Court. d) Such other and further reliefs as this Hon'ble Court may deem just and expedient be granted in favour of the petitioner.

e) Costs of this petition be provided for to the petitioner.”

2. The short facts of this petition may be summarized as under:

2.1 Petitioner is carrying on the business of manufacturing, selling and trading in washing powder, bath soap, liquid soap, beauty shampoo and various other items, as stated in the plaint in the name and style of Nirma and Shakti Powder. That the goods were sold to the respondent-original defendant between the period 07.04.2005 to 29.06.2005, worth Rs.46,37,791/- and in this regard, bills were also supplied to the respondent-defendant. The goods was ordered at Ahmedabad and the terms and conditions of the sale and payment were fixed at Ahmedabad and respondent used to make the payment at Ahmedabad. That on 1st April, 2005, the respondent had an outstanding balance to pay to the petitioner to the tune of Rs.25,68,000.80 ps. That the said outstanding balance and the new purchases totaling Rs.72,05,791.80 ps. were payable to the petitioner-original plaintiff. That the respondent-original defendant paid Rs.47,30,000/- between 07.04.2005 and 24.06.2005 and this payment was made by draft payable at Ahmedabad through ICICI Bank. Receipts of the said payment were also issued in favour of the respondent-original defendant.

2.2 That the present petitioner had also issued credit notes for the total amount of Rs.2,03, 092/- between May, 2005 and July, 2005. That the security deposit of the respondent totaling Rs,11,18,224.72 ps. were also transferred to the current account from the deposit account as on 01.07.2005 and thus, deducting the credit notes and the deposits, the respondent- original defendant was liable to pay the balance amount for which a cheque was issued on 07.09.2005 for Rs.11,54,475/- and such cheque was not honoured and returned back. Thereafter, the respondent again issued a new cheque on 29.12.2005 for the said amount of Rs.11,54,475/-. That the said cheque was stopped by the drawer respondent, and thus, there was an outstanding amount in the account of the respondent to the tune of Rs.11,54,475.08 ps. As a result thereof, repeated demands were made, but payment was not coming forth, and therefore, a notice dated 11.11.2006 was given by the petitioner to the respondent. The notice was sent by RPAD post as well as by UPC, but neither the RPAD nor the UPC returned back and, therefore, it is deemed that the service is effected.

2.3 The petitioner has stated that in all the bills, there is a condition that the delayed payment would carry interest at the rate of 17% per annum, and therefore, the interest is chargeable as per the terms and conditions of the contract. In the aforesaid background, as there was no reply to the notice, the petitioner