1 sj184-11 vai IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.184 OF 2011 IN SUMMARY SUIT NO.728 OF 2011 WITH SUMMARY SUIT NO.728 OF 2011 M/s.Jharsanya Logistics Pvt. Ltd. ....Plaintiff V/s. P.K. Pounraj Proprietor of M/s.Satya Granites ....Defendant Mr.Cyrus Ardeshir with Mr.Abhishek Savant i/b Apex Consillis for the Plaintiff. None for the Defendant. CORAM : S.J. VAZIFDAR, J. DATE : 14TH NOVEMBER, 2011. P.C. :- 1. The plaintiff had sold and delivered the machinery to the defendant for an aggregate consideration of Rs.4,61,00,000/-. The defendant paid an amount of Rs.3,15,00,000/- leaving the balance of Rs.1,46,00,000/-. The plaintiff had filed a complaint before the police station and the same was under investigation. 2. In the meantime, the parties arrived at a settlement, as evidenced by an agreement dated 12.1.2010. Under the agreement, 2 sj184-11 the defendant agreed to retain a sum of Rs.25,00,000/- towards the warranty and service compensation from the balance amount of Rs. 1,46,00,000/- due and payable to the plaintiff. Even in this respect, the plaintiff’s case is that there are no defects for which the amount can be retained and that the plaintiff will be adopting independent proceedings for recovering the same. The defendant paid an amount of Rs.1.00 crore leaving a balance of Rs.21.00 lacs. Under clause 9 of the agreement, the plaintiff agreed to withdraw the complaint and to submit the proof to the defendant of the same. The defendant agreed that after withdrawal of the case, the defendant would pay the balance amount of Rs.21.00 lacs. The suit is filed to recover this amount of Rs. 21.00 lacs. 3. By a letter dated 5.3.2010 addressed to the Senior Police Inspector, the plaintiff stated that the parties had compromised the dispute and therefore requested the Senior Police Inspector not to proceed any further against the F.I.R. and the sole proprietary firm of the defendant. The plaintiff stated that it had come forward to withdraw the case dated 1.11.2009. The defendant had filed Writ Petition No.3299 of 2009 for quashing the complaint, which was disposed of by an order of the Division Bench of this Court dated 23.4.2010. The same reads as under :- “Learned Counsel for the petitioner submits that the parties have amicably settled all their disputes and 3 sj184-11 as per his instructions, the complainant has given a letter to the Police Station that he does not desire to prosecute the complaint further. In view thereof, the learned Counsel for the petitioner does not press this writ petition. The writ petition is disposed of, as withdrawn. 2. Despite the settlement, if for any reason, the Police proceeds to file charge-sheet against the petitioner, then it is open to the petitioner to apply for discharge before the appropriate Court. ” 4. In view of the above, nothing remains to be done by the plaintiff. A chargesheet has not been filed. The complaint therefore stands withdrawn. 5. The contention in the affidavit in reply that the plaintiff has not rectified the defects, is not sustainable, as the payment of the sum of Rs.21.00 lacs is independent of the same. The amount of Rs.25.00 lacs has been retained towards the warranty. 6. In the circumstances, there is no defence to the suit. The defendant has remained absent despite the fact that by an order dated 21.10.2011, it was made clear that the matter had been adjourned as a last opportunity. 7. The summons for judgment is therefore, made absolute and the suit is decreed as prayed. Interest however, shall be payable on the said sum at the rate of 12% p.a. from the date of the filing of the suit till payment and/or realization. Costs to be quantified as per rules. Refund, if any, as per rules.