1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi SUMMARY SUIT NO. 2839 OF 2008. Parasmal Manekchand Rathod. ..Plaintiff. vs. Desa Ramji Solanki & Anr. ..Defendants. .... Ms. Neeta Solanki, i/b. Kiran Jain & Co., for Plaintiff. None for Defendants. CORAM : S.J.KATHAWALLA, J. DATE : 15TH JULY 2009. P.C. This summary suit is filed by the plaintiff seeking decree against the defendants for a sum of Rs.1,16,027/- and further interest on Rs.1,00,000/- at the rate of 18% per annum or at such further and other rate of interest, as this Court deems fit and proper from the date of filing of suit till the payment and/or realisation and/or costs of the suit. 2. The plaintiff has filed this affidavit of examination-in- chief dated 14 th July 2009 and has also filed the compilation of the 2 original documents dated 8 th June 2009 relied upon the by the plaintiffs. The said affidavit of examination-in-chief is taken on record and marked ‘X’. 3. As mentioned in the plaint as well as in the evidence, the defendants are known to the plaintiff. The defendant no.1 is the drawer of the suit Demand Bill of Exchange while the defendant no.2 is the acceptor of the said Demand Bill of Exchange. On 27 th August 2007, the defendant no.1 drew, signed and executed a Demand Bill of Exchange on defendant no.2 asking him to pay to the plaintiff at Mumbai on demand a sum of Rs.1,00,000/-being valuable consideration of Rs.1,00,000/-received by defendant no.1 from the plaintiff in cash on 27 th August 2007. The said Demand Bill of Exchange was presented to defendant no.2 for acceptance and defendant no.2 accepted the said Demand Bill of Exchange by signing and executing the same on the same date, i.e. on 27 th August 2007. The said Demand Bill of Exchange was delivered and handed over to the plaintiff. The plaintiff has produced the original Demand Bill of 3 Exchange dated 27 th August 2007. He has deposed that the same is signed by defendant no.1 as drawer and defendant no.2 as acceptor in his presence and he identifies their signatures. The Demand Bill of Exchange dated 27 th August 2007 is taken on record and marked as Exhibit-P-1. 4. It is stated in the plaint as well as in the evidence that on 27 th August 2007, the plaintiff presented the said Demand Bill of Exchange dated 27 th August 2007 to defendant no.2 for payment, but defendant no.2 dis-honoured the same by non-payment. The plaintiff thereafter informed the defendant no.1 about the said dishonour of Demand Bill of Exchange by defendant no.2 and demanded from defendant no.1 the sum of Rs.1,00,000/-due under the said Demand Bill of Exchange dated 27 th August 2007. The defendant no.1 has also failed, neglected and avoided to pay this amount due to plaintiff under the said Demand Bill of Exchange. 5. The plaintiff has stated in the plaint as well as in the evidence that ultimately through his Advocate’s notice dated 13 th May 4 2008, he called upon the defendants to pay the sum of Rs.1,00,000/- with interest accrued thereon. The said notice was forwarded to the defendants by registered A.D. post as well as Under Certificate of Posting. An office copy of the said notice is produced before the Court alongwith the acknowledgment card as receipt of the notice to defendant no.1 and the packet containing the notice received from the postal authorities which are marked as “Unclaimed” as regards defendant no.2. The same is taken on record and marked as Exhibit- P-2 Collectively. However the defendants have failed and neglected to respond to the said notice and have also not paid any of the amounts demanded therein. 6. The plaintiffs have therefore submitted that they are entitled to claim from the defendants the said amount of Rs. 1 lac. alongwith the interest at the rate of 18% per annum from the date of the said dishonour of the Demand Bill of Exchange. The plaintiff has also submitted that the defendants are bound and liable to pay the said sum of Rs.1,00,000/-being the principal amount and the interest at the 5 rate of 18% per annum under the provisions of Negotiable Instruments Act. The plaintiff has further submitted that the defendants are jointly and severally liable to discharge the said liability arising out of the said Demand Bill of Exchange as more particularly set out in the particulars of the claim at Exhibit-C to the plaint. 7. I have perused the plaint as well as the affidavit of evidence and the documents namely Exhibit-P-1 and P-2 Collectively. The document at Exhibit-P-1 establishes/proves that on 27 th August 2007, the defendant no.1 drew signed and executed the Demand Bill of Exchange on defendant no.2 asking him to pay to the plaintiff at Mumbai on demand a sum of Rs. 1 lac. received by defendant no.1 from the plaintiff. The said Demand Bill of Exchange was presented to the defendant no.2 for acceptance and defendant no.2 has accepted the same by signing and executing the same on the same day. The plaintiff has also proved by his evidence as set out in paragraph 3 of his affidavit of evidence that he has presented the said Demand Bill of 6 Exchange dated 27 th August 2007 to defendant no.2 on 27 th September 2007 for payment, but defendant no.2 dis-honoured the same by non- payment. The plaintiff thereupon informed defendant no.1 about the said dishonour of the Demand Bill of Exchange by defendant no.2 and demanded from defendant no.1, the said sum of Rs.1,00,000/- due under the said Demand Bill of Exchange dated 27 th August 2007 but defendant no.1 has also failed; neglected and avoided to pay the same to the plaintiff. 8. As can be seen from the affidavit of service dated 6 th January 2008 filed by Shri Kisan K. Naik, Clerk of Sheriff of Mumbai that defendants have received the writ of summons served on them. However, the defendants have not come forward to defend the suit. 9. In view thereof, what is stated by the plaintiff in the plaint as well as in the evidence needs to be accepted and there is no reason to disbelieve the case made out by the plaintiff. In view thereof, I pass the decree in terms of the prayer clause (a) of the suit, 7 which reads thus :- “(a) That a Judgment and Decree be passed against defendants and in favour of plaintiff for a sum of Rs.1,16,027/- and for further interest on Rs. 1,00,000/- at the rate of 18% per annum or at such further and other rate of interest as this Court may deem fit and proper from the date of filing of suit till the payment and/or realization and costs of the suit.” 10. In view thereof, suit is decreed with costs. [ S.J.KATHAWALLA, J. ]