Bombay High CourtWP/2537/2018dismissed

Neelam Adwait Datar v. Kishor Anant Mhalas

2018-07-11Hon'Ble Shri Justice Nitin W. Sambre3 pages

1 911.2537.18 wp.doc ISM

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2537 OF 2018 Neelam Adwait Datar .....Petitioner V/s.

Kishor Anant Mhalas .....Respondent Mr. Sushil Nimbkar for the petitioner CORAM : NITIN W. SAMBRE, J.

DATE :

JULY 11, 2018.

P.C.

In a summary suit, leave to defend granted in favour of the petitioner-defendant, subject to deposit of Rs. 3 Lakhs, by way of impugned order dated 11/12/2017, passed by 3rd Jt. Civil Judge, Senior Division, Solapur, is questioned on the following grounds. Iresh Siddharam Mashal (a) That in probable defence of the present petitioner, it can Digitally signed by Iresh Siddharam Mashal Date:

2018.07.12 10:22:37 +0530 be ex-facie demonstrated that the amount as claimed in the summary suit is not payable.

2 911.2537.18 wp.doc (b) In absence of any documentary evidence on record so as to demonstrate that amount of Rs. 6 Lakhs, pursuant to MOU dated 13/08/2011 is paid to the present petitioner-defendant, a blanket leave to defend should have been granted in favour of the petitioner.

According to the learned counsel for the petitioner, the probable defence as is raised by the present petitioner to demonstrate that the respondent-plaintiff has no case and as such the order impugned is liable to be set aside. Considered submissions.

The suit of the plaintiff-respondent is based on cheque that was first dishonoured on 13/10/2011, second time on 15/10/2011 and second cheque was dishonoured on 11/01/2012. The law contemplates a presumption against the present

3 911.2537.18 wp.doc petitioner.

Once the aforesaid material is brought on record which is formed to be a basis for initiation for summary proceedings for recovery of amount, the order impugned putting petitioner to a condition of depositing of Rs. 3 Lakhs as a condition precedent to grant leave to defend pursuant to provisions of Order XXXVII Rule 3, in my opinion does not warrant any interference. Petition is dismissed.

[NITIN W. SAMBRE, J.]