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. 2763 OF 2006 SUMMARY SUIT NO. 2763 OF 2006 SUMMARY SUIT NO. 2763 OF 2006 Zainuddin Kasamali Sutarwala, age: 44 years an adult of Mumbai Indian Inhabitant, Having address at 21, Fishmat Co., M.Narayanrao Koli Marg, Next to Masjid Post Office, Mumbai- 400 003. ... Plaintiff. V/s. Dilip D. Patil, An adult of Mumbai Indian Inhabitant age and occupation not known presently having address at Kirabai Patil Chawl, Mahakali Caves Road, Andheri (East), Mumbai- 400 093. And also having address at Shiv Sangaram 2/8, Konkan Darshan, PMG Road, Jogeshwari, Mumbai- 400 060. And also having address at Flat No.C/6 507/508/B, Poonam Darshan-C, Poonam Nagar, Andheri (E), Mumbai- 400 093. ... Defendant. S.Shamim i/b. Shamim & Co. for the plaintiff. None for the defendant. CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J. DATED: 14th February 2008. DATED: 14th February 2008. DATED: 14th February 2008. JUDGMENT : JUDGMENT : JUDGMENT : -------- -------- -------- . This is a summary suit filed by the plaintiff for the recovery of Rs.5,00,000/- contending that the defendant had taken loan of Rs.5,00,000/- from him against which he had given cheque in discharge of his liability. The cheque was dishonoured for the reason "fund insufficient". In spite of opportunity granted to the defendant, he did not make payment. Consequently, the plaintiff was required to file present suit for the recovery of the outstanding dues, due and recoverable from the defendant. 2. In the plaint, it is mentioned by the plaintiff that the criminal prosecution under section 138 of the Negotiable Instruments Act, 1881 ("N.I.Act" for short) in the form of Criminal Case No.2079/SS/2005 is pending in the Court of learned Metropolitan Magistrate (6th Court) at Mazagaon, Mumbai and the defendant has admitted his liability before the learned Magistrate and requested for some time to make payment. In the plaint it is also mentioned that the accused has been convicted for the offence punishable under section 138 of the N.I.Act by the learned Magistrate on 27th March, 2006 and the defendant has been sentenced to pay fine of Rs.5,25,000/- and, in default, simple imprisonment for six months. Time to pay fine was granted till 31st May, 2006. The defendant defaulted in making payment. Copy of the order dated 27th March, 2006 is also produced on record along with plaint. - 3 - 3. In spite of service of writ of summons, the defendant did not appear. He did not ask for leave to defend suit. Consequently, the plaintiff was directed to file affidavit in support of the suit claim so as to find out the latest position with regard to the implementation and execution of the order dated 27th March, 2006 passed by the learned Magistrate under section 138 of N.I.Act. Accordingly, the plaintiff has filed affidavit dated 13th February, 2008 duly sworn by the plaintiff himself. The material paragraph of the affidavit reads as under: "11. I say that the amount paid by the Defendant is the amount paid towards the penalty/fine, for the criminal offence committed by him, and that the Defendant is still liable to pay his entire claim of Rs.5,00,000/- to the Plaintiff, and therefore I have filed the present Summary Suit No.2763 of 2006, before this Honourable Court......." 4. The plaintiff was asked to verify his affidavit in lieu of examination-in-chief; since this Court wanted to seek some clarification with regard to the fact whether or not the compensation awarded to him has been paid to him out of payment of fine since there was a confusing statement made in that behalf in that behalf in the affidavit - 4 - filed on record. The plaintiff, accordingly, entered the witness box. He verified his affidavit (Exh.P). Even during the course of verification he did not make any positive statement or reference with regard to the receipt of the payment of compensation from and out of the amount of fine. Consequently, the court questions were required to be put to him. In answer to the said questions he replied that he received Rs.5 lakh from and out of the amount of fine imposed, by the learned Magistrate, in the proceeding initiated by him under section 138 of the N.I.Act. 5. In the aforesaid scenario, now the question is: whether the plaintiff is entitled to decree of Rs.5 lakh prayed in the suit with interest thereon from the date of the suit till realisation of the amount. The order of learned Magistrate in the prosecution under section 138 of the N.I.Act is dated 27th March, 2006. The suit was filed subsequently i.e. on 11th September, 2006. There is nothing on record to indicate on which particular date this amount of Rs.5 lakh was received by the plaintiff, though the admitted fact is that he has received Rs.5 lakh from and out of the amount of fine. - 5 - 6. Since the plaintiff has received Rs.5 lakh from the defendant in the proceeding under section 138 of the N.I.Act, thus, the principal amount has already been received by the plaintiff. The plaintiff has claimed interest on the amount of Rs.5 lakh from the date of filing of the suit till realisation. The suit claim is valued only in the sum of Rs.5 lakh. Consequently, the plaintiff is not entitled to the amount of interest from the date of payment of cheque or from the date of dishonour of cheque till filing of the suit. Now the question is as to whether the plaintiff is entitled to future interest i.e. from the date of filing of the suit till realisation under section 34 of Code of Civil Procedure, 1908 ("C.P.C." for short). 7. The grant of interest under section 34 of C.P.C. is the discretion of the Court. In this view of the matter, the question would be whether or not the plaintiff is entitled to such discretionary relief from this Court. In my considered view, the plaintiff is not entitled to any discretionary relief muchless future interest, - 6 - from the date of filing of the suit till realisation of the amount, for more than one reasons. 8. Firstly, the plaintiff has not disclosed as to on which date he had received Rs.5 lakh from and out of the amount of fine by way of compensation. The said date of realisation of Rs.5 lakh has not been disclosed in the plaint. The suit has been filed in the month of September, 2006. It was, thus, open for the plaintiff to mention as to on which date the amount was received by him or, at any rate, it was expected of him to disclose the said fact in the affidavit of evidence; so as to enable this court to determine terminal point of his entitlement to claim interest. 9. Secondly, the plaintiff is not entitled to discretionary relief from this Court for filing tricky affidavit, portion of which is extracted hereinabove. He thereby tried to suppress the material facts or at least tried to mislead this Court. The extracted portion, if read, it would be clear that the statement made goes to show that the amount paid by the defendant is amount towards - 7 - penalty and fine for criminal offence committed by the defendant and that he is still liable to pay the entire claim of Rs.5 lakh to the plaintiff. This tricky and misleading statement gives an impression that the plaintiff did not receive Rs.5 lakh which were awarded to him by the learned Magistrate by way of compensation. As a matter of fact, it was expected on the part of the plaintiff to disclose this factual aspect evidencing receipt of Rs.5 lakh from the amount of fine disclosing the actual date of receipt and, thereafter, it was open for him to build his claim for future interest. The affidavit gives a picture as if the plaintiff has not been paid an amount of Rs.5 lakh from and out of amount of fine and that still he has to recover Rs.5 lakh from the defendant by way of suit claim. 10. The Apex Court in the case of S.P.Chengalvaraya Naidu v. Jagannath S.P.Chengalvaraya Naidu v. Jagannath S.P.Chengalvaraya Naidu v. Jagannath, AIR 1994 SC 853 has observed as under: " The Courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. It can be said without hesitation that a person whose case is based on falsehood has no right to approach the Court. He can be summarily thrown out at any - 8 - stage of the litigation. A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party." 11. In the present suit the plaintiff has tried his best to mislead this Court. He tried to tailor his affidavit of evidence to build his case on false premise. I deem it fit to place on record that after having noticed these illegalities and after having put this factual aspect so as to receive the explanation of the learned counsel for the plaintiff, he could not offer any explanation. He even could not point out from the affidavit a single sentence to show that he had made any statement saying plaintiff has received an amount of Rs.5 lakh from and out amount of fine awarded in the criminal prosecution. 12. In the above view of the matter, I have no option but to dismiss this suit holding that the plaintiff is guilty of playing fraud on this Court as well as on the opposite party. In the result, suit is dismissed with costs quantified in the sum - 9 - of Rs.10,000/-. (V.C.DAGA, J.) (V.C.DAGA, J.) (V.C.DAGA, J.)