*1* SJ-436-09.sxw Dixit IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.436 OF 2009 IN SUMMARY SUIT NO.1545 OF 2009 E.M.U. Lines (P) Ltd. ... Plaintiffs V/s. Dawson Cargo Services & Anr. ... Defendants Mr. M.C. Shah, i/b. Mr. J.B. Singh, for the Plaintiffs. Mr. K.J. Kukreja, i/b. Mr. M.B. Bhagwat, for Respondent Nos.1 & 2. CORAM : S.C. DHARMADHIKARI, J. DATE : 19 th December, 2011. P.C. : 1. At the request of the Plaintiffs, the Suit is allowed to be withdrawn and stands dismissed as against the Defendant No.2. 2. This Suit is filed under Order XXXVII of the Code of Civil Procedure, 1908, on the basis of a written contract, which is evidenced by the invoices, for providing services to the Defendants. The details of these invoices are set out in para 4 of the plaint and the copies thereof are annexed. It is stated that the services that are rendered were under the instructions of the Defendants. The details of the services are also mentioned in the plaint. It is stated that there was no dispute with regard to the quality of the services rendered, nor is there any denial of the claim, but in discharge of the liability, the Defendants have made part payment for which due credit has been given by the Plaintiffs. Thus, based on the written contract, as evidenced above, and the acknowledgment in writing dated 17th September, 2007, that the instant Suit is filed as a Summary Suit stating that there were letters raising demand, forwarded through the *2* SJ-436-09.sxw Advocate. It has been stated that the balance sum is now due together with interest in terms of the particulars of the claim. 3. Upon the appearance being entered, a Summons for Judgment has been taken out and duly served on the Defendants. It is stated that the Defendants have filed the Vakalatnama only to defeat and delay the passing of a decree in the Suit. 4. By an affidavit-in-reply, the Summons for Judgment is contested and the Defendants seek leave to defend on the basis of the statements therein and particularly that the Debit Notes may have been raised from time to time, but it has been stated that the services were not upto the mark and this was orally pointed out to the Plaintiffs. It is stated that one of the clients of the Defendants have complained about damage to their cargo. Although it is conceded that a post dated cheque was issued, it is stated that once such a complaint was received from the Defendants’ customers/clients, that the payment under the cheque was stopped. It is in these circumstances, that it is prayed that the Defendants are entitled to unconditional leave to defend the Suit. 5. In the affidavit-in-rejoinder what the Plaintiffs have pointed out is that the plea raised with regard to the services being defective and lacking in quality is false, because in the very paragraph of the affidavit-in-reply, in which this complaint is referred, what has been stated is that the Defendants orally complained to the Plaintiffs. There is no reference to any written complaint, nor any correspondence on this issue. It is in such circumstances, that it is prayed that the Summons for Judgment be made absolute. 6. It is on the above material that I have heard Mr. Shah, the learned Advocate appearing on behalf of the Plaintiffs, and Mr. Kukreja, the learned Advocate appearing on behalf of the Defendants. Mr. Kukreja submits that this *3* SJ-436-09.sxw is not a Suit on a written contract, as evidenced by order XXXVII of the Code of Civil Procedure. The Suit on invoices simplicitor and allegedly for services rendered cannot be termed as a Suit based on a written contract. Therefore, he prays that triable issue arise for consideration and this is a fit case for grant of unconditional leave. Even with regard to the plea of jurisdiction, what has been argued by Mr. Kukreja is that, it has been stated very clearly by the Defendants that the Debit Note was raised from Navi Mumbai and each of the Debit Note specifically mentions the destination and name of the vessel which carried the container. Thus, the services were rendered beyond territorial jurisdiction of this Court and the goods were exported from Nhava Sheva to Durban (South Africa) from Kuwait etc. Thus, the services were rendered beyond the jurisdiction of this Court and, therefore, without any leave under Clause XII of the Letters Patent having been obtained, this Suit is not maintainable. Therefore, reliance is placed upon the judgment of the Division Bench of this Court in the case of Quadricon Pvt. Ltd. Vs. Shri Bajrang Alloys Ltd., in Appeal No.215 of 2008 in Notice of Motion No.467 of 2007 in Suit No.3537 of 2004, decided on 4th September, 2008/17th March, 2009 and reported in 2009(5) Bom.C.R. 345. 7. It is argued on behalf of the Plaintiffs that the Suit is maintainable as a Summary Suit and there are several orders including a judgment of a Full Bench of this Court in the case of SICOM Ltd. v. Prashant S. Tanna reported in AIR 2004 Bom. 186. 8. After having carefully perused the plaint and the annexures thereto so also the affidavits on record, I am of the opinion that the Suit is filed by the Plaintiffs against the Defendants, who are carrying on business from Bombay. The business is of export and import of goods. The Defendants send various goods to various parts outside India through Plaintiffs and the Plaintiffs’ services were hired by loading, transporting and other services referred to in the plaint. It is clear that once the Defendants were carrying on business from *4* SJ-436-09.sxw Bombay, the agreement was arrived at in Bombay, as stated in the plaint, then from where the goods were shipped and to which destination is not material particularly because the Defendants made part payment and acknowledged their liability to make payment under the subject contract at Bombay. The cheque drawn on the ICICI Bank Ltd., Bombay, was handed over in Bombay. For all these reasons, to my mind, the argument that this Court lacks territorial jurisdiction to entertain and try this Suit and particularly for want of leave under Clause XII of the Letters Patent cannot be accepted. 9. Equally, untenable is the argument that the Suit is not maintainable as a Summary Suit, because services rendered cannot be said to be a written contract between the parties. Here, what has been pleaded is that the Suit is not based just on services rendered or invoices simplicitor, but there is an agreement between the parties evidenced by the Bills/Debit Notes, which have been raised and which came to be forwarded. There is also an acknowledgment of the services rendered, as is evidenced by Exhibit-H to the plaint. If that is so, the Suit based on these composite documents can be said to be on a written contract and coupled with the acknowledgment of liability, it certainly be filed under Order XXXVII of the Code of Civil Procedure, 1908. Reliance placed on an order in another Summons for Judgment by Mr. Kukreja is misplaced, because in that case there are only invoices without any written agreement and they were pleaded as evidence of a written contract. It is in that circumstances and in peculiar facts of that case, that unconditional leave was granted. That order is thus distinguishable. 10. As far as the merits are concerned, I am not in a position to accept the defence raised straightway. If the demands were raised from time to time, then the least that was expected from the Defendants was that they would raise the issue of defective quality of services or any damage caused to the cargo in writing accompanied by complaint, which was forwarded by their clients. However, not only once, but on three occasions in the year 2008, the *5* SJ-436-09.sxw Defendants acknowledged that the services have been rendered, that the amount is due and payable and that for financial difficulties, they could not make the payment. If that is so, then I do not see how the defence raised that the quality of services was defective and reliance placed on an e-mail stated to have been received on 5th September, 2007, can be accepted. This appears to be a clear afterthought. 11. However, it is for the Defendants to still make good their case, as pleaded in para 11 of their affidavit-in-reply, but, in the facts of this case and in the light of the acknowledgment of the liability, interest of justice would be served if a conditional leave is granted to defend the Suit. 12. In the light thereof, on the Defendant No.1 depositing in this Court, the principal amount under each of the invoices, namely Sr. Nos.1 to 7 of the particulars of claim at Page Nos.25 and 26 within a period of twelve weeks from today, they will be permitted to defend the Suit. Thereupon, the written statement may be filed within a period of eight weeks from the date of such deposit. The discovery and inspection be completed within that period. Needless to state, that non compliance with this condition shall result in the Suit being decreed, as prayed. (S.C. Dharmadhikari, J.)