K.R. Shriram JUDGMENT
K.R. Shriram, J.
1. The plaintiff had filed this suit for a summary decree in the sum of Rs. 1,49,50,000/- with interest @ 18% p.a. on the amount of Rs. 1,00,00,000/- from the date of filing of the suit till payment/realization. The suit as filed is based on dis-honoured cheque which was issued by the defendant for an amount of Rs. 1,00,00,000/-. By an order dated 16.2.2010, unconditional leave to defend was granted by this court.
2. According to the plaintiff, the defendant had issued the cheque as security in favour of plaintiff to secure payment in respect of supply effected by plaintiff on M/s. Umesh Enterprises and its customers. It is the plaintiff's case that some time in or around March, 2004 one Umesh Shah, Proprietor of M/s. Umesh Enterprises, approached the plaintiff and requested plaintiff to supply Furnace Oil and Light Diesel Oil to M/s. Umesh Enterprises as well as to the customers of M/s. Umesh Enterprises and had agreed to make payment to plaintiff on behalf of its customers. Accordingly, the plaintiff supplied the goods from time to time to diverse customers of M/s. Umesh Enterprises as well as to M/s. Umesh Enterprises and initially payments were made by Umesh Enterprises. However, subsequently, the cheques issued by M/s. Umesh Enterprises started getting dishonoured and when the matter was taken up with M/s. Umesh Enterprises, plaintiff was assured that payment towards the said supplies would be effected through another group concern of the said Umesh Enterprises, i.e., through the defendant herein who was the brother of the said Umesh Shah and carrying on business as Proprietor of Arihant Petrochem. In view of the assurances given by the Proprietor of M/s. Umesh Enterprises, plaintiff supplied material to its customers once again and the amount which was due and payable to plaintiff as on 11.01.2005 was Rs. 3,25,96,444/-.
The plaintiff has received part payments from M/s. Umesh Enterprises as well in the sum of Rs. 1,35,88,279/- (Rupees One Crore Thirty Five Lakh Eighty Eight Thousand Two Hundred Seventy Nine) and a sum of Rs. 54,40,000/- from defendant and that left an amount of Rs. 1,35,68,165/- (Rupees One Crore Thirty Five Lakh Sixty Eight Thousand One Hundred Sixty Five) due and payable.
3. It is the case of the plaintiff that as there was a large amount of Rs. 1,35,68,15/- (Rupees One Crore Thirty Five Lakh Sixty Eight Thousand One Hundred Sixty Five) due and payable by M/s. Umesh Enterprises to the plaintiff the plaintiff met the defendant and Umesh Shah. During the meeting the defendant guaranteed payments to be made by Umesh Shah Enterprises and in furtherance thereto gave a cheque for Rs. 1 crore as security. As the said Umesh Enterprises did not pay the balance amount and since the defendant had guaranteed the repayment of the dues of Umesh Enterprises and its customers, the plaintiff presented the cheque for Rs. 1 crore issued by the defendant. The cheque was dishonoured on presentation. According to the plaintiff, notice was issued to the defendant after dishonour of the said cheque and a complaint was filed on or about 22.8.2005.
The present suit is instituted against the defendant in his capacity as guarantor of the dues of his brother Mr. Umesh Shah.
4. In the written statement filed, the defendant took the following defences :-
"(i) There is no privity of contract between the defendant and plaintiff and therefore the defendant is not liable to pay or agreed to discharge the liability of Umesh Enterprises as the plaintiffs have not produced any document to show that Umesh Enterprises have agreed to discharge the liability of the plaintiffs;
(ii) The plaintiffs have not joined Umesh Enterprises as necessary party to the suit;
(iii) The plaintiffs filed false and frivolous criminal case being Criminal Case No. 192 of 2005 against the defendant under Section