IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION SUMMARY SUMMARY SUMMARY SUIT NO.2375 OF 2006. SUIT NO.2375 OF 2006. SUIT NO.2375 OF 2006. Shakir Anwar, Aged about 38 years, Occupation : Business, Having office at Gopinath Colony No.1, Room No.16, Near Khamdevi Mandir, Dharavi, Mumbai - 400 017. ..Plaintiff. Versus. Akbar Aijaz Hussain, age Not known Occupation : Husiness, Residing at 158, Zakariya Masjid Street, 2nd Floor, Room No. 7/8, Mumbai - 400 009. .. Defendant. Mr.S. R. Gupta, Advocate for the Plaintiff. None for Defendant. CORAM CORAM CORAM : V.C.DAGA, J. : V.C.DAGA, J. : V.C.DAGA, J. DATE DATE DATE : 19th March, 2008. : 19th March, 2008. : 19th March, 2008. JUDGMENT JUDGMENT JUDGMENT -------- -------- -------- 1. The plaintiff has filed a summary suit for recovery of Rs.7,00,080/- with interest thereon @ 18% per annum from the date of institution of the suit till realisation. 2. Factual matrix appearing from the plaint allegations is that the plaintiff is a sole ( 2 ) proprietor of M/s S.A. Leather Works, carrying on his business of all kinds of fancy leather items and allied products. The defendant had transaction with the plaintiff in connection with purchase of leather items such as wallets, ladies purshes, etc. The defendant in the month of March, 2003 placed an order with the plaintiff to manufacture leather wallets worth Rs.13,888/-. The material required for preparing the said leather wallets were supplied by the defendant. The labour charges for manufacturing each leather wallets were fixed @ Rs. 45/- per wallets. 3. The plaintiff vide his invoice bearing No. 58 dated 27.5.2003 delivered leather wallets duly manufactured to the defendant. Thereafter, as per the order of the defendant, the plaintiff prepared some more leather items and billed labour charges amounting to Rs. 75,000/-. The amount of Rs.7,00,000/-in toto was due and recoverable from the defendant. 4. The defendant in discharge of his liability issued 14 cheques each amounting to Rs. 50,000/-. All were drawn on Honkong and Shanghai Banking Corporation Ltd.M.G. Road, Mumbai-400 ( 3 ) 001. Cheques Exhs.B to B-13 are produced on record. 5. The said cheques, on presentation were 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 the Metropolitan Magistrate, 12th Court, Bandra Mumbai being Criminal Case No.3190/SS/2005. Based on the dishonoured cheques, the plaintiff has also filed the present suit for recovery of the outstanding dues. That is how, the plaintiff is claiming Rs.7,00,000/- together with interest thereon @18% per annum from the date of the suit till realization in full and final. 6. The writ of summons was issued which the defendant has accepted, which is evident from the affidavit of a bailiff attached to the Sheriff of Bombay filed by the plaintiff on 19th July, 2007. 7. However, the defendant failed to appear. Consequently, the defendant neither applied for ( 4 ) leave to defend nor did he took any step to dislodge the suit claim preferred by the plaintiff. 8. The plaintiff has filed as many as 31 documents in support of the suit claim including original cheques alongwith returned memos, together with the notice issued by him to the defendant and also filed the photo copy of the judgment in C.C. No. 3190/SS/2005 on record. 9. Since, the defendant failed to appear and contest the suit the plaintiff was entitled to a decree forthwith as prayed. 10. When this matter came up for hearing, this Court after noticing the decision in criminal prosecution initiated under Section 138 of the N.I. Act, against the defendant. The plaintiff was called upon 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 has, accordingly, filed his undertaking on oath dated 5th March, 2008 reading as under :- ( 5 ) (a)" If any amount is recovered by me in execution of the decree which may be passed in the present matter, I give an undertaking to this Hon’ble Court to inform the same to the Sessions Court, Bombay where Criminal Appeal No. 816 of 2006 is pending and/or any other proceedings which may be pending between the plaintiff and the defendant arising out of judgment and order dated 10.10.2006 passed in Criminal Case No. 3190/SS of 2005. (b) If any amount is received by me in the Criminal Appeal No. 816 of 2006 and/or any other proceedings arising out of the impugned judgment and order dated 10-10-2006 passed in Criminal Case No. 3190/SS of 2006 filed by me against the defendant under Section 138 of the Negotiable Instrument Act in respect of dishonour of three cheques bearing No.098140, 098141 and 098142 produced at serial Nos. 6, 7, and 8 to the compilation of original documents, I give an undertaking to this Hon’ble Court to give credit of the same, while recovering the amount in execution of the decree which may be passed against the defendant in the present suit." 11. The above Undertaking was accepted by this Court and decreed the suit on 5th March, 2008, for the reasons to be recorded. Accordingly, the suit is being disposed. 12. As already stated hereinabove, the ( 6 ) 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. 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) The defendant do pay to the plaintiff and the plaintiff to recover Rs. 7,00,000/- with interest thereon @ 18% per annum from the date of institution of the suit till realization and costs, subject to compliance of the undertaking given to this Court dated 5.3.2008 incorporated in para 10 of the judgment forming part of the decree. b) Decree be drawn in terms of this order. (V.C. (V.C. (V.C. DAGA, J.) DAGA, J.) DAGA, J.)