: 1 : USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.444 OF 2009 IN SUMMARY SUIT NO.1638 OF 2009 M/s. Gemme Accessories (Pvt.) Ltd. .. Plaintiffs v/s. M/s. Dwarkesh Dimonds Pvt. Ltd. .. Defendants ......... Ms. Sunita R. Tiwari for the plaintiffs Mr. Devan Dhruve for the defendants ......... CORAM : R.Y.GANOO, J. DATE : 26th APRIL, 2010. P.C. : 1. The plaintiffs have sold the dimonds and other gold jewellery to the defendants by raising four invoices as set out in the particulars of claim at Exhibit “N”. As the defendants did not pay the amount covered by the four invoices, plaintiffs filed this summary suit. The : 2 : plaintiffs have taken out the aforesaid summons for judgment and the summons for judgment was taken up for hearing. It is to be noted that despite service of the summons for judgment upon the defendants, the defendants failed to file their affidavit in reply. Today, effort was made by the learned Counsel for the defendants to submit that defendants are prepared to settle the matter. However, they have not said anything as to how much amount they are prepared to deposit or pay to the plaintiffs towards settlement. Learned Counsel for the plaintiffs submitted that settlement is not possible. Hence, summons for judgment was heard on merits. 2. I have perused the averments in the plaint and the relevant exhibits. Since no affidavit in reply is filed in the summons for judgment, the averments in the plaint have gone unchallenged. Apart from that, defendants had issued certain cheques towards payment of cost of the goods received by them. However, those cheques are dishonoured and plaintiffs have instituted cases under Section 138 of the Negotiation of Instrument Act. All this will clearly go to show that the plaintiffs are entitled to receive the principal : 3 : amount namely Rs.61,63,728/-. So far as the interest component is concerned, the plaintiffs have charged interest @18% per annum from the date of the invoice. So far as this amount is concerned, the invoices are silent as regards the rate of interest payable by the defendants in the event of non-payment of the monies. In the plaint, there is no specific averment to show that between the parties it was agreed that interest at the particular rate would be paid, if the bills are not paid in time. Hence, plaintiffs’ claim for interest from the date of the invoices till the date of the filing of the suit cannot be accepted. The plaintiffs would be able to get interest from the date of the institution of the suit till the realization. I am inclined to fix the rate of interest @12% per annum from the date of the filing of the suit till realization looking to the nature of transaction, the period when the transaction was made, and conduct of the defendants. The plaintiffs of course, will be entitled to costs. Since, there is no affidavit in reply to the summons for judgment, the summons for judgment can be made absolute and the suit can be decreed in terms of the following terms. : 4 : DECREE (i) Defendants do pay to the plaintiffs Rs.61,63,728/- as and by way of principal amount. (ii) Defendants do pay to the plaintiffs interest @12% per annum on Rs.61,63,728/- from the date of filing of the suit till realization. (iii) Defendants do pay to the plaintiffs costs of the suit. (iv) In view of the decree passed in the suit, the summons for judgment stands disposed of with no order as to costs. [R.Y.GANOO, J.]