1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMARY SUIT NO.1622 OF 2005 Tarun Bachubhai Solanki ..Plaintiff V/s Austin Francis D'souza ..Defendant Mr.Madhav Jamdar, Advocate, for the plaintiff None for the defendant CORAM : R.M.SAVANT, J. DATE : 11TH DECEMBER, 2008 P.C. . The plaintiff has filed the above Summary Suit for recovering an amount of Rs.9,22,816/- in terms of the particulars of the claim (Exhibit – F) to the plaint at 18% per annum from filing of the suit till full and final realization of the same. 2. It is the case of the plaintiff that the plaintiff and the defendant were carrying on business of providing marketing and financial services and for that purpose a Deed of Partnership was 2 executed on 21st September, 2000. 3. Since the defendant stopped looking after the business and the said business also suffered heavy loss, the office premises of the partnership firm was sold in or about December, 2001. Thereafter, the accounts were settled and on settlement of the accounts it was established that the defendant owed a sum of Rs.6,00,000/- as due and payable to the plaintiff. The defendant accordingly issued a cheque of Rs.6,00,000/- which was dated 3rd May, 2002 bearing No.146071 drawn on Abhudaya Co-operative Bank Limited, Borivali (East), Mumbai. The said cheque was deposited by the plaintiff in his Bank on 6th May, 2002. However, the said cheque was dishonoured on account of “insufficient funds”. The Cheque Return Memo dated 6th May, 2002 was accordingly received by the plaintiff. On being contacted by the plaintiff the defendant asked the plaintiff to re- deposit the cheque on 9th May, 2002. The plaintiff accordingly re- deposited the cheque on 9th May, 200 on which occasion also the cheque was dishonoured for “insufficient funds”. The plaintiff received Cheque Return Memo dated 9th May, 2002 of Abhudaya Co-operative 3 Bank Limited. The plaintiff thereafter, issued a statutory notice under Section 138 of the Negotiable Instruments Act, 1881, calling upon the defendant to make payment of the amount mentioned in the dishonoured cheque within 15 days, failing which action under Section 138 of the Negotiable Instruments Act, 1881, would be initiated. On receipt of the said notice it is the case of the plaintiff that the defendant assured him that he would make necessary arrangement for payment of Rs.6,00,000/-. Although considerable time elapsed, the defendant failed to make payment. The plaintiff therefore was ultimately constrained to file the instant suit for recovery of the amount of Rs.9,22,816/- which includes the principal amount of Rs.6,00,000/- with interest of Rs.3,22,860/- calculated at 18% per annum from 6th May, 2002 to 1st May, 2005. 4. The plaintiff has filed affidavit of service dated 3rd April, 2006 evidencing that the Writ of Summons has been served on the defendant. The defendant has not put in an appearance on his behalf. The suit therefore has been listed as an undefended suit. 4 5. The plaintiff has filed his Affidavit of Evidence bearing today's date i.e.11th December, 2008 as also Compilation of Documents dated 18th July, 2007. The Compilation of Documents inter alia comprises of the original cheque issued by the defendant, Cheque Return Memo and notice issued on behalf of the plaintiff and particulars of the claim. The said affidavit in lieu of evidence is marked as “Exh-A” and Compilation of Documents is marked as “Exh- B” collectively. Since the defendant has not appeared in the above suit and has not filed his Written Statement, the claim of the plaintiff has gone uncontroverted and unchallenged. The averments made in the plaint would therefore have to be accepted. The suit therefore would have to be decreed under Order VIII, Rule 10 of the Code of Civil Procedure, 1908. The plaintiff would be entitled to interest @ 18% on the application of Section 80 of the Negotiable Instruments Act, 1881. The suit is accordingly decreed in terms of prayer clauses (a), (b) and (c). Decree to be drawn up accordingly. (R.M.SAVANT, J.) 5