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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO.2207 OF 2013

Bhikan Dhudkoo Patil

..Petitioner

Versus

Amrut Dayaram Shinde

..Respondent

.........

Mr.Vinod Patil, advocate for petitioner

Mr.P.N.Kutti, advocate for respondent - sole.

.........

CORAM : R.G.KETKAR, J.

DATE : JULY 25, 2013

PER COURT :

Heard Mr.Vinod Patil, learned counsel for the

petitioner and Mr.P.N.Kutti, learned counsel for

the respondent, at length.

2]

By this petition under Article 227 of the

Constitution of India, the original defendant has

challenged the judgment and order dated 30^th

January, 2013 passed by the IInd Jt. Civil Judge

Senior Division, Jalgaon, below exhibit 19 in

Summary Suit No.1 of 2012. By that order, the

learned trial Judge allowed the application made by

the original defendant and granted leave to defend

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the suit, on condition of deposit of half of the

amount of the total suit claim in the Court within

two months from the date of the order and to file

written statement within said period thereafter.

The learned trial Judge further ordered that if the

amount is deposited by the defendant, the same

shall be kept in the fixed deposit by the office of

the Court, in any nationalised bank, during

pendency of the suit and the order of disbursement

of the said amount shall be depending upon the

final decision of the suit.

3]

In support of this petition, Mr.Patil

submitted that the suit instituted by the

respondent itself is not maintenable under Order 37

Rules 1 and 2 of the Code of Civil Procedure, 1908

(for short C.P.C.). He submitted that the suit is

based upon the document at exhibit 3/1 which is a

plain paper. The said document is not registered

one. He further submitted that the defendant had

not taken amount of Rs.6,40,700/- from the

plaintiff. In support of his submissions, he relied

upon the decision in the case of Ms. Purnima

Jaitly Vs. Ravi Bansi Jaisingh, AIR 2003 BOMBAY

294. In the alternate, he submitted that the time

to deposit the amount as per the impugned order may

be extended by a further period of four weeks from

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today. He assured that he will not apply for

further extension of time.

4]

On the other hand, Mr.Kutti supported the

impugned order. He submitted that the suit is

based upon dishonour of cheque issued by the

defendant.

5]

I have considered the submissions. In the

case of Purnima (supra), in paragraph 3 of that

report, it was observed that there was neither

written agreement between the parties nor has the

defendant executed bill of exchange. The respondent

has instituted suit on the basis of dishonour of

cheque issued by the defendant. Under such

circumstances, it cannot be said that the suit

instituted by the plaintiff is not maintainable.

6]

The learned trial Judge, after considering the

material on record, has granted conditional leave

to defend by directing the defendant to deposit

half of the amount of total claim in the Court. The

learned trial Judge has also considered various

judgments cited before him.

7]

After hearing learned counsel appearing for

the parties as also after considering the material

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on record, I do not find that the learned trial

Judge has committed any error in passing the

impugned order.

8]

The petition fails and the same is dismissed.

9]

The time originally fixed in the impugned

order dated 30^th January, 2013 for depositing the

amount as also for filing the written statement, is

extended by a period of four weeks from today,

subject to condition that no further extension

shall be applied for. Authenticated copy is

permitted.

[R.G.KETKAR, J.]

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