1 SJ377.08.sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 377 OF 2008 IN SUMMARY SUIT NO. 3370 OF 2005 Sunder Underwater Services Pvt. Ltd. ... Plaintiffs. V/s. Seatrans Shipping Ltd. ... Defendants. Mr. A.M. Vernekar for the Plaintiffs. Mr. Bimal Rajshekhar i/b. Mr. Ashwin Shankar for the Defendants. CORAM : R.Y. GANOO, J. DATED : 29th SEPTEMBER 2010. P.C. :- The present Suit is filed for recovery of monies viz. Rs.5.00 lakhs being the amount recoverable on the basis of cheque which got dishonored. Sum of Rs.2.00 lakhs and odd is claimed by way of a interest on Rs.5.00 lakhs from the date of dishonor till filing of the Suit. 2. The Summons for Judgment was taken out in November 2008 and the same is already served upon the Defendants. The Defendants have not filed affidavit in reply within the stipulated period as also have not prayed for condonation of delay in filing affidavit in reply and taking affidavit in reply on record till today. Hence, hearing of the Summons for Judgment proceeded on the basis that there is no affidavit in 2 SJ377.08.sxw reply on behalf of the Defendants. 3. In the absence of affidavit in reply, it is the duty of the Court to ascertain whether institution of the Suit as Summary Suit was proper and if that is so, as there is no affidavit in reply the case of the Plaintiffs will have to be treated as un- controverted. 4. The Plaintiffs filed this Suit for recovery of sum of Rs.5.00 lakhs being the amount of recovery of interest. Learned Counsel for the Plaintiffs submitted that case under Section 138 of Negotiable Instrument Act was filed in connection with the dishonored cheque referred to in the present Suit and before the learned Metropolitan Magistrate at Bombay, a sum of Rs.5,71,400/- was paid by the Defendants to the Plaintiffs and the case came to be compromised. Learned Counsel for the Defendants across the bar argued that on account of compromise of the said case, all claims in regard to the dishonored cheque came to an end and therefore, nothing was due and payable after the order of compromise was passed. This argument of learned Counsel for the Defendants was refuted by the learned Counsel for the Plaintiff by contending that the claim of the Plaintiffs for recovery of interest was not settled and what was settled was a principal amount of Rs.5.00 lakhs. An explanation is found in the Summons for Judgment as regards Rs.71,400/- i.e. the amount in excess of the cheque amount of Rs.5.00 lakhs. That explanation has not been controverted by the Defendants. In 3 SJ377.08.sxw view of the above, the claim of the Plaintiffs as regards interest remains unchallenged. Hence, the Defendants will have to deposit the said amount as and by way of a condition for defending the Suit. 5. In view of the above, following order is passed to dispose of the Summons for Judgment :- (i) Upon the Defendants depositing in this Court a sum of Rs.2,68,000/- on or before 19th November 2010, the Defendants are granted leave to defend. (ii) The Defendants to file written statement directly in the office on or before 30th November 2010. (iii) The Defendants to serve copy of the same upon the Plaintiffs. (iv) At the time of filing written statement, the Defendants to annex proof of having deposited the said amount. (v) After the amount is deposited, Office to invest the same initially for a period of two years and continue to renew the same for like period till further orders. (vi) There shall be no order as to costs. (R.Y. GANOO, J.)