IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION. ORDINARY ORIGINAL CIVIL JURISDICTION. ORDINARY ORIGINAL CIVIL JURISDICTION. SUMMARY SUIT No. 15 of 2005. SUMMARY SUIT No. 15 of 2005. SUMMARY SUIT No. 15 of 2005. Shardadevi S. Agarwal, adult of Mumbai Indian Inhabitant, residing at 4/6, Navjeevan Co-op. Housing Society Ltd., Lamington Road, Mumbai-400 008. ..Plaintiff. Vs. Ahmed Abdul Gani, adult of Mumbai Indian Inhabitant carrying on construction business under the name and style of A.G. Builders as a sole Proprietor thereof, and having its place of business at Accost, 151, Pali Road, Bandra (West), Mumbai-400 050. ..Defendant. CORAM: V. C. DAGA, J. CORAM: V. C. DAGA, J. CORAM: V. C. DAGA, J. DATED: 16.02.2008. DATED: 16.02.2008. DATED: 16.02.2008. Mr Ajay Miser i/b Ajay Miser & Co. Advocate for the Plaintiff. Mr Rashid Khan i/b Zohair & Co., Advocate for the Defendants. JUDGMENT. JUDGMENT. JUDGMENT. -------- 1. This is the summary suit filed by the plaintiff for recovery of Rs. 4,88,450/- contending that the plaintiff had advanced Rs. 2,00,000/- to the defendant on 14.2.1995. According to the plaintiff, the defendant has executed a Pronote on the same date promising to ( 2 ) ( 2 ) ( 2 ) pay Rs. 2,00,000/-with interest thereon. 2. According to the plaintiff by letter dated 15.8.2002 the defendant acknowledged his liability and promised to pay the said amount and in discharge of his liability issued a cheque of Rs. 2,00,000/- on 13.1.2004. The bankers of the defendant did not honour the said cheque. With the result, the present suit is filed by the plaintiff on the basis of the dishonoured cheque. The plaintiff has also instituted prosecution under Section 138 of the Negotiable Instruments Act ("N.I.Act" for short) and the same is pending. 3. On being served with the summons for judgment the defendant appeared through Advocate but did not seek leave to defend. The learned counsel appearing for the defendant on being asked stated that he has no instructions from the defendant. Consequently, the suit is taken up for judgment forthwith. 4. The learned counsel for the plaintiff has filed affidavit of evidence in support of suit claim stating all the relevant facts on oath. ( 3 ) ( 3 ) ( 3 ) The statements made on oath went unchallenged. Even the documents filed are also unchallenged. The original cheque issued by the defendant dated 30.1.2004 is also produced alongwith bankers advise whereby the cheque was dishonoured. The demand notice dated 24.2.2004 alongwith acknowledgement is also produced on record. The plaintiff has, thus, proved his claim. The suit is liable to be decreed. 5. At this stage, it is relevant to note that the plaintiff has also filed an undertaking on oath stating therein that in the event present suit is decreed and the decretal amount is recovered before finalization of the Criminal Case No. 4327/SS/2005, then the plaintiff would not claim any compensation in the criminal proceedings initiated under Section 138 of the N.I.Act. It is further stated on oath that in the event the suit is decreed and the decretal amount remains to be realized before decision of the Criminal Case referred to herein and if the Criminal Court awards compensation,and amount is recovered from the defendant/accused, then the plaintiff would adjust that amount towards decretal claim. In other words, the plaintiff ( 4 ) ( 4 ) ( 4 ) has given an undertaking that he will not make dual claim against the defendant. The statements made in this behalf and undertaking given are accepted and taken on record. 6. In the above view of the matter, the plaintiff is entitled for decree in terms of prayer clause (a). ORDER. ORDER. ORDER. (i) The suit is decreed in terms of prayer clause (a) with costs. The defendant to pay to the plaintiff sum of Rs. 3,88.450/- with interest on Rs. 2,00,000/- @ 12% per annum from the date of suit till realization. (ii) Decree be drawn in terms of this order. JUDGE. JUDGE. JUDGE.