: 1 : ss-239-07=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMARY SUIT NO. 239 OF 2007 Mahesh Sanghavi .. Plaintiff v/s. Heena Chaitanya Kalbag .. Defendant ......... Mr. Tushar Goradia with Ms. Nisha Parmar for the plaintiff Mr. A.P. Bagwe for the defendant ......... CORAM : R.Y.GANOO, J. DATE : 22nd DECEMBER, 2010 P.C. : 1. The learned Counsel Mr. Bagwe undertakes to file Vakalatnama on behalf of the defendant within 3 weeks from today. Undertaking is accepted. 2. The plaintiff has produced non-deposit certificate issued by the Prothonotary and Senior Master. The certified copy of the documents on which plaintiff wants to rely upon are also produced. The original of this documents are in the Court of learned Metropolitan Magistrate concerning the case under Section 138 of the Negotiable Instrument Act. Learned Counsel appearing on behalf of the plaintiff pointed out : 2 : ss-239-07=.sxw that by order dated 16th July, 2006 read with order dated 18th March, 2009 in Summons for Judgment No.144 of 2007 the defendant was required to deposit Rs.18,57,000/- for the purposes of defending the suit. She pointed out that defendant has not complied with the said order. She, therefore, pressed for decree as per the provisions of Order 37 Rule (3) (6) (b) of Civil Procedure Code. As against this, learned Counsel for the defendant submitted that some time may be given to the defendant to attend to the matter. He also contended that defendant was not aware of the order. 3. I have perused the record. Order dated 16th July, 2007 was passed in the presence of advocate for the defendant. This will mean that defendant was aware of the order passed against her. In such a case, it was necessary for the defendant to comply with the said order for the purposes of defending the suit. Since the defendant has not complied with the said order further time as demanded, cannot be granted. It must also be mentioned that on 13th December, 2010, the matter was posted for ex-parte decree. Defendant appeared in person and sought time to engage a new lawyer. Time was granted by way of indulgence upto 13th December, 2010. Till today, no proceedings have been taken out to attend to the matter to protect the interest of the defendant. Sufficient indulgence has been given to the defendant. : 3 : ss-239-07=.sxw Hence, request for grant of adjournment and postponing the question of passing of ex-parte decree is declined. 4. I have considered the plaint as well as the documents. The defendant had issued one cheque dated 31th July, 2006 for Rs.75,000/- and another cheque was issued on 30th August, 2006 for Rs.17,82,000/- making it together Rs.18,57,000/-. The suit is filed for recovery of monies on the basis of the dishonour of cheques. Since the defendant has not complied with the order as regards deposit of the money, the plaintiff is entitled to a decree for non-compliance of the orders passed by the Court in terms of provisions of Order XXXVII Rule 3(6)(b) of Civil Procedure Code. The plaintiff would be entitled to decree to the extent of Rs.18,57,000/- by way of principal amount. So far as interest is concerned, plaintiff has claimed interest @24% p.a. After looking through the record, I am inclined to observe that plaitniff has failed to make out a case to secure the interest @24%. Since the suit is on the basis of dishonour of cheques, I am inclined to grant interest @18% p.a.. The cheques were dishonoured on 17th November 2006. In view of this, plaintiff is entitled to claim the interest w.e.f. 17th November, 2006 @ 18% p.a. till realization. Plaintiff will be entitled to the costs of the suit. Hence, following decree is passed. : 4 : ss-239-07=.sxw DECREE (i) Defendant do pay to the plaintiff Rs.18,57,000/-. (ii) Defendant do pay to the plaintiff interest @18% p.a. on Rs. 18,57,000/- from 17th November, 2006 till realization. (iii) Defendant do pay to the plaintiff costs of the suit. (iv) Refund of Court fee is granted as per Rules. (v) In view of the above order, Notice of Motion No.380 of 2007 is allowed to be withdrawn with no order as to costs as the decree is passed in the suit. (R.Y.GANOO, J.)