ZAINUDDIN KASAMALI SUTARWALA Vs. DILIP D PATIL

JUDGEMENT

(1.) 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". Inspite 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.) 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.