Tata Capital Ltd. vs. Patel Ashok Kumar Kantilal Prop. Of Patel Ashok Kumar Kantilal

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

SUMMONS FOR JUDGMENT NO.437 OF 2010 IN SUIT NO. 2772 of 2010

Tata Capital Financial Services Ltd. ...Plaintiff Versus Mr Patel Ashok Kumar Kantilal sole ...Defendant proprietor of Patel Ashok Kumar Kantilal

Mr Birendra Saraf with Abhishek Adke i/b MDP & Partners for the Plaintiff. Mr Vijay Seth with P.J.Pandit for the Defendant.

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CORAM : S.C. GUPTE, J.

JANUARY 20, 2014

P.C. :

This Summary Suit is filed by the Plaintiff in its capacity as the holder in due course and payee of the bills of exchange, which according to the Plaintiff were drawn by the Defendant and accepted by the purchaser of the Defendant, namely, one Biotor Industries Ltd. ("BIOTOR"). It is the case of the Plaintiff that these bills have been discounted, payments have been made thereunder and upon BIOTOR's failure to make the payment, the Plaintiff is entitled to recover dues in respect of the bills of exchange from the Defendant. The defence of the Defendant mainly is that, it has not executed suit bills of exchange and that the Bills of Exchange have been forged. According to the Defendant, the invoices mentioned in the suit Bills of Exchange do not belong to the Defendant. The Defendant has alleged that BIOTOR and/or its employees have committed a fraud which covers an amount of more than Rs.300 crores and that several FIRs have been filed by various parties including the Defendant itself as well as Bankers of the said BIOTOR in respect of this fraud. All these FIRs have been placed on record by the Defendant. The Defendant has also demonstrated from various documents that the payments received through

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RTGS, on behalf of the said BIOTOR, were in respect of the particular invoices and payment advices received by the Defendant from said BIOTOR. It is the case of the Defendant that these documents show the real transaction which occurred on 9 January 2009. On the basis of these documents, the Defendant claims that the transactions referred to in the suit herein are far from genuine. The Defendant in fact has filed a suit against BIOTOR claiming various amounts from BIOTOR on the basis of the alleged fraud.

3. These are all serious triable issues, which bona fide arise in the suit. The Defendant has a genuine defence to go to the trial.

4. In the premises, unconditional leave to defend is granted to the Defendant. Suit is transferred to the List of Commercial Causes. Written Statement may be filed within a period of eight weeks from today. Suit to come up on board for issues, on 5 March 2014.

5. The Summons for Judgment is disposed of accordingly.

( S.C.GUPTE J. )