1 sj88-09.sxw pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Summons for Judgment No. 88 of 2009 . in Summary Suit No. 1379 of 2008 Mukesh P. Jain .. Plaintiff v/s. Vishwanath Naranna Shetty & Another ..Defendants Mr.Ramesh Jain for the Plaintiff. None for the Defendants CORAM : R.Y.GANOO, J. DATED : 14th October , 2010 P.C. : 1. The defendants have remained absent though sufficient opportunity was given to them to remain present. Even Advocate for the plaintiff had intimated Mr.Shukla, Advocate for the defendants of today’s date. According to the plaintiff, defendant no.1 executed the Bill of Exchange dated 9.2.2008 showing plaintiff as payee in the sum of Rs. 1,50,000/- and defendant no.2 accepted the bill. According to plaintiff towards repayment of the said amount, a cheque dated 1.11.2006 was issued by the defendants. However, the said cheque 2 sj88-09.sxw was dishonoured as account was closed. Dishonour memo dated 3.11.2006 is on record. According to plaintiff by 4.12.2006 defendant no.1 had repaid to plaintiff the sum of Rs.30,000/- towards the liability arising out of the said bill of exchange and the said dishonoured cheque. The plaintiff has given credit to the defendants towards this amount and this is manifested on the basis of the particulars of claim. 2. Defendants have filed affidavit in reply to the summons for judgment through defendant no.1. The defendants have denied the entire transaction as regards issuance of execution and acceptance of the bill of exchange by defendant nos.1 and 2 respectively. In so far as the cheque issued by defendant no.1 in favour of the plaintiff, explanation is found in para 11 of the affidavit in reply. The defendant no.1 contends that plaintiff had assured defendants that if certain amount is paid to the plaintiff he would earn interest on it. Defendant no.1 claims that at the later point of time he thought it fit as to not involve himself in the business of the plaintiff and earn money. Though this explanation is set out in para 11, there is no explanation as to why the cheque got dishonoured. It is not as if that 3 sj88-09.sxw the payment of cheque came to be stopped as defendant no.1 was not interested in involving himself with the plaintiff. The cheque is dishonoured on account of closure of account. This fact negatives the stand of the defendant as set out in para 11. To that extent, defendant has failed to make out case by way of defence. The affidavit in reply is totally silent about the claim of plaintiff as regards repayment of Rs.30,000/- by way of part payment. 3. In the circumstances mentioned aforesaid, defendants have not been able to explain as regards cheque which came to be dishonoured on account of closure of the account. Defendants have no defence to the present suit. As such summons for judgment will have to be made absolute. 4. Plaintiff has claimed interest at the rate of 18% per annum from 4.12.2006 i.e. the day when part payment was made. Since rate of interest is not mentioned in the entire transaction in accordance with the provisions of Section 80 of the Negotiable Instruments Act, plaintiff would be entitled to interest at the rate of 18% per anum. In view of the above, Summons for Judgment is hereby made absolute 4 sj88-09.sxw and following decree is passed against the defendants. ORDER i) Defendants jointly or severally do pay to plaintiff Rs.168437.25. ii) Defendants jointly or severally do pay to plaintiff interest at the rate of 18% per annum on Rs.1,20,000/- from 4.12.2006 till realization. iii) Defendants jointly or severally do pay to plaintiff costs of the suit. iv) Summons for Judgment and the suit stands disposed of in the above terms. Refund of court fees granted as per rules. [R.Y.GANOO, J.]