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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

O.O.C.J.

rpa

SUMMONS FOR JUDGMENT NO. 23 OF 2008

IN

SUMMARY SUIT NO. 2062 OF 2005

Kishordas Shamjibhai Mehta

.. Plaintiff

V/s.

Alaknanda Stainless Limited & Ors.

.. Defendants

....

Ms. Mangal Bhandari a/w. Mr. H. V. Chande for the plaintiff.

Mr. M.P.S.Rao, senior advocate a/w. Mr. D. Davare i/b. Udwadia &

Udeshi & Co. for defendant Nos. 1 and 2.

....

CORAM : A. S. OKA, J.

DATE : FEBRUARY 3, 2011.

ORAL JUDGMENT :-

Heard the learned counsel appearing for the parties. With a

view to appreciate the submissions made by the learned counsel

appearing for the parties, it will be necessary to deal with the facts

of the case in brief.

2.

The suit is filed for recovery of a sum of Rs.13,96,498/- with

further interest of Rs. 8,67,383/- at the rate of 18% per annum.

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The case made out in the plaint is that for valuable consideration,

the first defendant drew in favour of plaintiff a bill of exchange for

a sum of Rs.10,47,383/- dated 11^th January, 2002. By the bill of

exchange, the first defendant directed the second defendant to pay

the plaintiff a sum of Rs.10,47,383/-. It is stated that the bill of

exchange drawn in connection with sale of certain quantity of

stainless steel. He stated that the bill was duly accepted by the

second defendant.

3.

According to the case of the plaintiff, the first defendant

requested the plaintiff by letter dated 11^th January, 2002, to

discount the said bill of exchange and release the payment after

deducting the discounting and other charges. The first defendant

confirmed that they are supplied the goods in a good condition to

the second defendant and there was no dispute as regards the

goods. By the said letter, the first defendant waived presentation

of the bill of exchange as well as the noting and protesting of the

same.

4.

Reliance is placed on the letter of the second defendant

dated 11^th January, 2002, by which the second defendant

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confirmed having accepted the Bill of Exchange and requested the

plaintiff to release the payment to the drawer. The second

defendant confirmed of having received the goods in good

condition. The second defendant also waived presentation of the

Bill of Exchange as well as noting and protesting the same. The

second defendant forwarded a cheque dated 11^th April, 2002 in

the sum of Rs.10,47,383/-. The cheque was a post dated cheque.

On receipt of the cheque, the plaintiff discounted the Bill of

Exchange and released payment to the first defendant by issuing a

cheque in the amount of Rs.10,00.896/- after deducting the

discounting charges. According to the plaintiff, the original third

defendant was the Chairman and Managing Director of the second

defendant who had given a written personal guarantee on

14^th February, 2002.

5.

According to the case of the plaintiff, the cheque issued by

the second defendant was dishonoured for non payment on the

ground that the funds were insufficient. It is stated that when the

Bill of Exchange was presented to the second defendant, the same

was dishonoured for non payment on the ground of financial

difficulties. He stated that on the basis of the guarantee of third

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defendant, a demand was made to the third defendant of payment

of the amount of Bill of Exchange, who declined to pay. Reliance

is placed on notice of demand dated 19^th March, 2002. A case is

made out that the second defendant made a part payment of

Rs.1,80,000/- on 19^th March, 2003 by a pay order. The suit is

accordingly filed for recovery of the balance amount. In the

plaint, it is contended that the bar of limitation, if any, is saved by

part payment of a sum of Rs.1,80,000/- made by the