*1* ss.3246.09.961.sxw kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMARY SUIT NO.3246 OF 2009 Chandrakant S. Nikam. ..Plaintiff -versus- Purnima D. Shivalkar and another. ..Defendants ............ Mr.Lalit V. Jain, for the Plaintiff. None for the Defendants. ............ CORAM : S.C.DHARMADHIKARI, J. Date : 27th September, 2011. P.C.: 1 Mr.Jain, learned counsel appearing for the Plaintiff, states that the claim in the suit is based on the written contract and in any event, on the basis of the negotiable instrument, the Defendants have agreed to execute leave and licence agreement in respect of the immovable property, provided the Plaintiff will pay to them a sum of Rs. 70,000/- by cheque. This sum was duly forwarded by cheque and which cheque was encashed by the Defendant No.2. Although the agreement was formally executed, there was no intention to put the Plaintiff in possession. The Plaintiff gave up his right of seeking possession and called upon the Defendants to pay a sum of Rs.70,000/- which was paid as security deposit, along with interest. Even that notice having not been replied nor the amount is refunded, the suit is filed as summary suit. 2 After perusal of the original documents, I am satisfied that the suit claim is within limitation. This Court has jurisdiction to entertain and try the suit and it is sustainable and maintainable under Order XXXVII *2* ss.3246.09.961.sxw of the Code of Civil Procedure, 1908 as the Plaintiff on giving up right to claim possession of the immovable property under the leave and licence agreement, but seeking refund of the security deposit which was paid by cheque, the suit can be filed as summary suit. 3 The affidavit proving service is taken on record and marked “X” for identification. The original documents are also taken on record and marked “X-1 collectively” for identification. There will be decree as prayed. Refund of the court fees as per rules. Advocate’s costs to be computed as per rules. (S.C. Dharmadhikari, J)