- 1 - 57.sj.325.09 ss.135.09 skt IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 325 OF 2009 IN SUMMARY SUIT NO.135 OF 2009 Sandhya Santram Singh ..Plaintiff -Versus- Shankar Sayabanna Kunchikorve ..Defendant .......... Ms.Sharmila U. Deshmukh for the Plaintiff. Mr.Satish Mishra i/by Ashok M. Saraogi for the Defendant. .......... CORAM : S.J. KATHAWALLA, J. DATE : 10TH MARCH 2011. P.C. 1 By this Summons for Judgment, the plaintiff prays that judgment be entered for the plaintiff in the suit against the defendant for Rs.7,65,000/- as set out in the plaint with interest and costs. According to the plaintiff, in the month of April 2006, the plaintiff and defendant entered into an agreement dated 18th April 2006 whereunder the plaintiff agreed to purchase from the defendant and the defendant agreed to sell to the plaintiff tenement No. 2936, Chawl No.197, Group No.8A, Tagore Nagar, Vikhroli East, Mumbai-400 083 (the suit premises) for a total consideration - 2 - 57.sj.325.09 ss.135.09 of Rs.14,50,000/- on the terms and conditions mentioned in the Sale Agreement annexed as Exhibit ‘A’ to the plaint. 2 The plaintiff from time to time upto 22nd July 2006 paid a sum of Rs. 11,65,000/- to the defendant. According to the plaintiff, in the last week of July 2006, she verbally requested the defendant to accept the balance consideration of Rs.2,85,000/- and to hand over the possession of the suit premises to the plaintiff. The defendant expressed his inability to complete the transaction of sale due to unavoidable circumstances and expressed his desire to cancel the agreement for sale dated 18th April 2006 and agreed to refund the sum of Rs.11,65,000/- to the plaintiff. 3 On 31st July 2006, the defendant issued two post dated cheques in favour of the plaintiff i.e. cheque no.628492 dated 25th August 2006 amountig to Rs.5,65,000/- and cheque no.628498 dated 31st August 2006 amounting to Rs.6,00,000/- both drawn on Sangli Sahakari Bank Ltd., Vikhroli Branch towards the refund of the sum of Rs,11,65,000/- paid by the plaintiff under the terms of the agreement for sale dated 18th April 2006. According to the plaintiff, the defendant also executed a declaration dated 31st July 2006 whereunder the defendant recorded the fact of cancellation of the agreement for sale dated 18th April 2006 and the fact of issuing two post dated cheques for a sum of Rs.11,65,000/- to the plaintiff. - 3 - 57.sj.325.09 ss.135.09 Both the cheques were dishonoured when presented for payment for the reason 'funds insufficient'. 4 The plaintiff informed the defendant about the two cheques being dishonoured and returned on the ground of 'insufficient funds'. Thereafter, the defendant on 5th September 2006, paid to the plaintiff a sum of Rs.4,00,000/- in cash and for the balance liability of Rs.7,65,000/-, the defendant issued three post dated cheques being cheque no. 657351 dated 16th September 2006 for Rs.2,50,000/-, cheque no.657352 dated 19th September 2006 for Rs.2,65,000/-and cheque no.657353 dated 22nd September 2006 for Rs.2,50,000/-, all drawn on Sangli Sahakari Bank Ltd. Vikhroli Branch. 5 According to the plaintiff, all the three cheques when presented for payment, were dishonoured and returned by the bankers of the defendant for the reason "refer to Drawer". The plaintiff therefore through her Advocate issued notice dated 30th September 2006 to the defendant and called upon the defendant to make the payment under the dishonoured cheques. The defendant vide his Advocate's reply dated 12th November 2006 wrongly stated that the defendant had paid Rs.4,00,000/- in discharge of his liability which was limited to only Rs.4,00,000/-. The defendant further wrongly alleged in the said reply that he had issued four - 4 - 57.sj.325.09 ss.135.09 blank cheques and that the plaintiff had misused the cheques. The plaintiff thereafter filed the present suit. After the writ of summons was served on the defendant, the defendant through his Advocate filed an appearance. The plaintiff therefore took out the above Summons for Judgment seeking the aforestated reliefs. 6 Since the defendant had not filed his affidavit-in-reply to the Summons for Judgment this Court vide order dated 14th January 2011 (Coram : A.S.Oka, J.) passed the following order : "1. By way of indulgence, time is granted till 18th February 2011 to the Defendant to file reply. Rejoinder, if any, to be filed within a period of two weeks thereafter....." 7 Despite the above order wherein by way of indulgence an opportunity was given to the defendant to file his reply by 18th February 2011, the defendant failed to do so and till date has not filed his reply to the Summons for Judgment. Today when the Summons for Judgment is called out for hearing, Mr.Satish Mishra i/by Mr.Ashok Saraogi appears on behalf of the defendant and states that he has no instructions in the matter. 8 From the aforestated facts, it is established that the plaintiff had paid an amount of Rs.11,65,000/- to the defendant towards consideration of the suit flat. The agreement did not go through. The defendant initially issued - 5 - 57.sj.325.09 ss.135.09 two cheques aggregating to Rs.11,65,000/- to the plaintiff towards refund of the sale consideration. Both the cheques were dishonoured upon presentation for payment by the plaintiff for the reason 'insufficient funds'. Thereafter the defendant refunded a sum of Rs.4,00,000/- in cash to the plaintiff and issued three cheques aggregating to Rs.7,65,000/- to the defendant. All the three cheques were dishonoured upon presentation for payment by the plaintiff for the reason ‘refer to drawer’. In view of the aforestated facts, it is established beyond any doubt that the stand taken by the defendant in reply to notice received from the plaintiff’s Advocate that he had issued four blank cheques to the plaintiff which has been misused by the plaintiff and that the matter has been settled for Rs. 4,00,000/- paid by the defendant to the plaintiff is patently dishonest. As stated hereinabove no reply is filed on behalf of the defendant. No arguments are advanced on behalf of the defendant. 9 In view thereof, I am satisfied that the defendant has no defence whatsoever in the present suit qua the claim of the plaintiff. The suit therefore deserves to be decreed as prayed. The Summons for Judgment is made absolute against the defendant. This Court passes an order and decree against the defendant to pay to the plaintiff a sum of Rs.7,65,000/- alongwith interest at the rate of 18 percent per annum from the date of filing of the suit till payment or realization. - 6 - 57.sj.325.09 ss.135.09 10 The suit as well as the Summons for Judgment accordingly stand disposed of. Refund of court fees, if any as per rules. [ S.J. KATHAWALLA, J. ] -