1 SJ237.08.sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 237 OF 2008 IN SUMMARY SUIT NO. 687 OF 2008 Maharashtra State Road Development Corporation Ltd. ... Plaintiffs. V/s. Jai Bhawani Enterprises. ... Defendants. Mr. V.C. Ghosalkar for the Plaintiffs. Mr. Uday Bobde i/b. K.R. Belosay for the Defendants. CORAM : R.Y. GANOO, J. DATED : 09th DECEMBER 2010. P.C. :- The Plaintiffs permitted the Defendants to install toll booth near Railway Over Bridge at Fursungi on Pune - Hadapser Saswad Road and on account of the contract between the Plaintiffs and the Defendants, the Defendants were granted permission to collect the toll for a period of 52 weeks. The first day to collect the toll commenced on 1st January 2004 and it was to end on 31st December 2004 as the contract was for 52 weeks. 2 SJ237.08.sxw 2. Learned Counsel appearing on behalf of the Plaintiffs drew my attention to the letter addressed by the Defendants being work order dated 29th December 2003. In the said letter, schedule for payment is fixed that is to say for the 1st to 51st installments Rs.5,17,183/- was to be paid per installment. The installment was payable on the next day at the end of every week since the date of start of toll collection. The last installment of Rs.1,45,889/-, it was to be paid on next day at the end of the contract. 3. Learned Counsel for the Plaintiffs drew my attention to particulars of claim pages 92 and 93 of the plaint. It is noticed that the Defendants have on different dates paid an amount and the said amount is reflected in column ‘D’. Column ‘F’ shows balance payable for the particular installment which fell due on a particular week. 4. Learned Counsel for the Plaintiffs submitted that on the basis of the terms and conditions of the contract, the amount covered by 52 installments was payable at the end of the term and could be recovered at the end of the term. 5. The learned Counsel for the Plaintiffs submitted that though the installments fell on a particular date, it was the duty of the Defendants to ultimately see that all monies due and payable in regard to the contract are paid of by 31st December 2004. 3 SJ237.08.sxw 6. If this contention of the Plaintiffs is accepted and read in the light of the pages 92 and 93 of the plaint, it will go to show that the Suit is instituted by the Plaintiffs on the basis of a contract however, it is a Suit for recovery of monies at the foot of the account. I say so because the Defendants have deposited some amount from time to time and the Plaintiffs will have to calculate total amount payable as of 31st December 2004. If this is the position, though in the first blush one may take it that the Suit is based on the contract, the same could not have been instituted as a Summary Suit. If this is the position, the Defendants have made out a case for unconditional leave to defend. 7. Hence, following order is passed to dispose of the Summons for Judgment :- (i) The Defendants are granted unconditional leave to defend. (ii) The Defendants to file written statement on or before 15th February 2011 in the office. (iii) The Defendants to serve a copy of the written statement upon the Advocate for the Plaintiffs within 10 days from filing of the writ of summons in the office. (R.Y. GANOO, J.)