1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORIDINARY ORIGINAL CIVIL JURISDICTION SUMMARY SUIT NO. 290 OF 2009 Mohini Organics Pvt. Ltd ........Plaintiffs versus Premier Explochem Ltd. ........Defendants. Mr. Anil Agarwal adv. for the Plaintiffs None for the Defendants CORAM: A. P. DESHPANDE, J. DATED : 4th MAY, 2009. P.C.: 1. The present suit is filed by the Plaintiff under Order 37 of the Code of Civil Procedure claiming a money decree in the sum of Rs. 39,14,428/-, so also future interest at the rate of 18% per annum from the date of filing of suit till realization of the amount. 2. The plaintiff is a private limited company whereas the defendant is a public limited company. It is the case of the plaintiff that pursuant to the order placed by the defendant from time to time with the plaintiff at Bombay, the plaintiff sold, supplied and delivered to the defendant chemical goods of the nature mentioned in the plaint. The goods were supplied by road transport and the lorry receipts denote the plaintiff as consignor and the defendant as consignee. The goods were dispatched 2 under 12 invoices aggregating into an amount of Rs.30,17,798/- and the goods and the invoices were received by the defendant. The defendant had agreed to make payment within 30 days from the date of receipt of the invoice. It is also the case of the plaintiff that the defendant had agreed to pay interest at the rate of 15% per annum and the said term has been incorporated in the invoices itself. The details of the bill numbers, the date and the amount of goods sent by the invoices are stated in para 3 of the plaint. In discharge of the liability the defendant issued in all 15 cheques in favour of the plaintiff for a sum of Rs.30,17,798/- drawn on United Bank of India, Nashik branch. However, on presentation of the said cheques the same were dishonored by the bank. The plaintiff has not immediately deposited the cheques on receipt of the same, as the defendant had conveyed to the plaintiff that the defendant was facing difficulty on account of explosion at the factory at Nashik, the cheques were thereafter deposited for realization but came to be dishonored on the ground of want of sufficient fund in the account. After dishonor of the cheque legal notice was sent and the amount outstanding was demanded. However, the defendant failed and neglected to pay the amount. The plaintiff has thus resorted to two remedies, one by filing a complaint under sec. 138 of N.I. Act in the criminal court and (2) filing of the present suit. The learned counsel for the plaintiff makes a statement that as yet no order has been passed in the proceedings under sec. 3 138 of N.I. Act and the plaintiff has not received any amount in those proceedings and on account of non payment of the amount this suit has been filed. 6. Despite service of summons the defendant has chosen not to cause appearance to be made in the suit and thus the provisions of Order 37 Rule 2(3) will have to be given effect to sub rule (3) of rule 2 of Order 37, postulates that unless the defendant enters an appearance he shall not defend the suit and in default of his entering appearance, the allegations in the plaint shall be deemed to have been admitted and the plaintiff shall be entitled to a decree. In the present case, as the defendant has failed to cause an appearance the allegations in the plaint will have to be deemed to have been admitted by the defendant entitling the plaintiff to a decree. The plaintiff has placed on record the relevant documents such as duplicate invoices, original cheques signed by the defendant which are dishonored, so also the notice issued by the plaintiff to the defendant. From the documents as well the claim made by the plaintiff stands substantiated and deserves to be decreed. In the result, I pass the following order. 7. The suit is decreed in favour of the plaintiff and against the defendant . The defendant shall pay to the plaintiff a sum of Rs.39,14,428/-. 8. The defendant shall pay to the plaintiff the future interest at the rate of 12% per annum on the principal amount of 4 Rs.30,17,798 from the date of filing of the suit till realization of the amount. The defendant shall pay the costs of the suit to the plaintiff. The plaintiff shall be entitled to refund of court fees as admissible under the rules. 9. The Plaintiff shall place on record a copy of this judgment in the pending proceedings under section 138 of N.I.Act within eight weeks from today. (A. P. DESHPANDE, J.)