1 mpt IN THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGEMENT NO. 324 OF 2008 IN SUMMARY SUIT NO. 1254 OF 2008 Haresh Rai Singhani Prop. of M/s. Ruchika Constructions Co. .. Plaintiff versus Union of India & 2 ors. .. Defendants ... Ms.Shilpa Kapil for the plaintiff. Mr.Suresh Kumar for the defendants. CORAM : D.G. KARNIK, J DATED : 3rd April 2009 P.C.: 1. Learned counsel for the defendants tender a copy of the order of the Government of India dated 4th June 1992. Copy is taken on record. The signatory to the vakalatnama has been authorised and his name is mentioned at Serial number 30 of the order. The vakalatnama is therefore valid. 2 2. Advocate for the defendants tenders affidavit in reply. Counsel for the plaintiff has no objection for taking the affidavit in reply on record. Affidavit is accordingly taken on record. 3. By consent, Summons for Judgement is taken up for hearing. 4. I have heard the learned counsel for the parties. 5. This Summons for Judgement is taken out in a suit by the plaintiff for refund of the security deposit. By filing an affidavit in reply, defendants have disputed the liability to pay. In my view, defendants have two substantial defences. Plaintiff had previously referred the dispute to arbitration. A copy of the letter of the plaintiff demanding arbitration is produced at Exhibit-B (page 18) of the plaint. In paragraph no.15, plaintiff has claimed refund of the security deposit. Thus, the plaintiff had made a claim for refund to the security deposit before the arbitration. Thereafter it appears that the plaintiff had restricted the total claim to the extent of 20% of the contract value. Whether by restricting such a claim to 20% plaintiff is said to 3 have given up/waived or postponed the claim for security deposit is a question which requires consideration. 6. Second issue is of limitation. According to the learned counsel for the plaintiff, the contract was completed on 13th January 2003 and the period of maintenance expired on 31st July 2003. Plaintiff was entitled to refund of the security deposit on 31st July 2003, after the expiry of the period of maintenance. The present suit has been filed on 7th March 2008 i.e. after the expiry of period of three years from the date on which the secured deposit was to be repaid. Whether the plaintiff is entitled to any extension of period of limitation on account of a claim made before the arbitrator or not is again a question which requires consideration. 7. In the circumstances, defendants are entitled to an unconditional leave to defend. Hence, defendants are granted unconditional leave to defend the suit. Suit shall stand transferred to the list of commercial causes. Defendants shall file written statement within 12 weeks. (D.G. KARNIK, J)