: 1 : IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL ORIGINAL ORIGINAL CIVIL JURISDICTION CIVIL JURISDICTION CIVIL JURISDICTION SUMMARY SUMMARY SUMMARY SUIT SUIT SUIT NO.2000 OF 2005 NO.2000 OF 2005 NO.2000 OF 2005 Jayantilal Maganlal Brahmbhatt .. Plaintiff. Versus Rajendra Devidas Shah .. Defendant. Mr.Jayesh Bhatt for plaintiff. None for defendant. CORAM CORAM CORAM : V.C.DAGA, J. : V.C.DAGA, J. : V.C.DAGA, J. DATE DATE DATE : 12th March, 2008. : 12th March, 2008. : 12th March, 2008. P.C P.C P.C :- :- :- 1. The plaintiff has filed a summary suit for recovery of Rs.9,70,480.17 with interest on the principal sum of Rs.6,60,000.00 from the date of institution of the suit till realisation. 2. Factual matrix from the plaint is that the plaintiff is a retired person. The defendant is a builder and developer. The defendant had borrowed various sums from the plaintiff on various occasions. However, the defendant was unable to repay the amounts inspite of repeated demands. According to the plaintiff, the defendant agreed to give one flat to the plaintiff against his dues which amounted to Rs.6,60,000/-. Accordingly, the defendant and the plaintiff entered into an Agreement dated 1st September, 2000 whereby, the defendant agreed to sell flat admeasuring 550 sq.ft. located on the 1st : 2 : floor, "B" Wing, of his proposed project at Shanil Park, Malad. According to the plaintiff, the defendant promised to handover possession of the flat on or about 30th November, 2002, which the defendant failed and neglected to handover the possession of the flat. According to the plaintiff, after much persuasion and negotiations, the defendant ultimately agreed to refund amount of Rs.6,60,000/- and return the same by Cheque No.086275 dated 1st December, 2002 drawn on Corporation Bank, Kandivali Branch, Mumbai. The said cheque, on presentation was dishonoured by the bankers of the defendant for want of funds. Consequently, after filing complaint under Section 138 of the Negotiable Instruments Act, the criminal prosecution came to be initiated against the defendant, which is pending in the Court of Judicial Magistrate’s Court at Mansa being Criminal Case No.149 of 2002. According to the plaintiff, the defendant is absconding since he is facing number of warrants of arrest and the Economic Offences Wing of Crime Branch C.I.D. Bombay is also investigating certain cases against the defendant. In addition to prosecution under Section 138 of the N.I. Act based on the dishonoured cheque, the plaintiff has also filed the present suit for recovery of the outstanding dues and that is how, the plaintiff is claiming Rs.6,60,000/- together with interest thereon @18% per annum from 1st December, 2000 till 11th July, 2005 in : 3 : the sum of Rs.3,10,480.17 and has claimed decree in the sum of Rs.9,70,480.17 with future interest thereon. 3. The writ of summons was issued which the defendant avoided to the best of his ability, which is evident from the affidavit filed by the plaintiff on 16th November, 2005. It appears that when the Notice of Motion was taken out for interim relief, sometime in the month of August, 2005, the defendant appeared through M/s.Rajan Malkani & Co., Advocates. However, the defendant failed to obtain of condonation of delay for filing his appearance since it was beyond 10 days of service of notice. Consequently, the defendant neither applied for leave to defend nor took any step to dislodge the claim filed by the plaintiff. 4. The plaintiff has filed as many as six documents in support of his claim. The plaintiff has also produced original cheque alongwith cheque returned memo, together with the notice issued by him to the defendant and has also filed the copy of the complaint on record. 5. Since, the defendant failed to obtain any leave to defend, the plaintiff was entitled to obtain decree as prayed. 6. When this matter came up for hearing, this Court : 4 : after noticing the pendency of criminal prosecution under Section 138 of the N.I. Act, called upon the plaintiff to file affidavit-cum-undertaking not to effect dual recovery from the defendant i.e. in the present suit as well as in the prosecution under Section 138 of the N.I. Act, by way of compensation. The plaintiff accordingly has filed his affidavit dated 3rd March, 2008 reading as under :- "I do hereby give an Undertaking to this Hon’ble Court that if I receive any amount from the Defendant in the proceedings under Section 138 of the Negotiable Instruments Act, filed by me against the defendant in the Hon’ble Court at Mansa, District Gandhinagar, then I will give credit for the amount so received in decree that may be passed in above suit by this Hon’ble Court. I also undertake to disclose in this Hon’ble Court the amount if any received in the said proceedings at the time of applying for execution of decree herein". 7. The above Undertaking was accepted by this Court and decreed the suit on 12th March, 2008, for the reasons to be recorded. 8. As already stated hereinabove, the defendant inspite of service and appearance before this Court, failed to obtain leave to defend. In the circumstances, the plaintiff is entitled for a decree [since the nature of the present suit is a summary suit filed under Order 37 of the Code of Civil Procedure] with future interest thereon @18% per annum as per the provisions of the N.I. : 5 : Act. In the result, the suit is decreed in terms of the following order :- O R D E R R D E R R D E R "a) Defendant to pay to the plaintiff a sum of Rs.9,70,480.17 with interest thereon @18% per annum on the principal sum of Rs.6,60,000/- from the date of institution of the suit till realisation and costs." 9. Decree be drawn in terms of this order. (V.C. (V.C. (V.C. DAGA, J.) DAGA, J.) DAGA, J.)