1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 326 OF 2008 IN SUMMARY SUIT NO. 2240 OF 2008 Transwarranty Capital Pvt.Ltd.. ... Plaintiff. V/s. Mr. Dhansukh Khimji Shethia ... Defendant. --- Mr. Cama /by M/s. Anil Menon & Associates for the Plaintiff. Mr. Ajay Khandhar i/by M/s. Ajay Khandhar & Co. for the Defendant. --- CORAM : A. A. SAYED, J. DATED : JULY 10, 2009 P.C. : 1. By the above summons for judgment, the plaintiffs are seeking a decree in the sum of Rs. 2,04,158.40/- as set out in the particulars of claim annexed to the plaint. 2. The claim of the plaintiffs is essentially based on accounts. The learned counsel for the plaintiffs placed reliance upon the judgment in the case of Jyotsna K. Valia 2 vs. T.S. Parekh & Co. , reported in 2007 (3) Bom. C.R. 772 to submit that even if amount is not acknowledged, it is a contract admitted by the plaintiffs and it is a debt which is a readily calculable amount. He further relied upon some other judgments in the cases of viz. (i) R.C.Goenka vs. Chase Trading Co. & Anr., reported in 2002 (3) Bom. C.R. 201, (ii) HCG Stock & Share Brokers Ltd., vs. Gaggar Suresh, reported in (2007) 2 Supreme Court Cases 279 and (iii) Bombay Dyeing & Manufacturing Co. Ltd., vs. The State of Bombay & Ors., reported in AIR 1958 Supreme Court 328. It is his contention that even though there was an arbitration clause in respect of the dispute between the parties, the remedy of the plaintiff to approach this court was always open. 3. The learned counsel for the defendant on the other hand has pointed out that in para 27 of the very judgment of Jyotsana K. Valia vs. T.S. Parekh & Co.(supra), wherein it was held as follows : “From the above discussion it is clear that summary suit would not lie on a settled account which is not confirmed by the defendant and “on honoured cheque”. Items (II) and (IV) of para 2 are answered accordingly.” 4. The learned counsel for the defendant pointed out that 3 under the contract there is an arbitration clause and therefore, the plaintiffs were required to go for arbitration. The learned counsel for the plaintiffs on the other hand submitted that the mandatory period of six months has been provided for arbitration and as the said period has now expired, it is not possible for the plaintiffs to now go for arbitration. The learned counsel for the plaintiffs has relied upon the letter dated 20th April, 2007, which is at page 27 of the plaint to submit that the same is an acknowledgment of liability. 5. Having considered the rival contentions, in my view, the Full Bench Judgment in the case of Jyotsna K. Valia (supra), though relied upon by the plaintiffs, clearly supports the case of the defendant that there is no confirmation of the accounts by the defendant. The letter dated 20.04.2007 does not acknowledge liability as is sought to be contended. The plaintiffs having failed to have settled the dispute by arbitration have now approached this Court after a period of two years by way of a summary suit. In my view, the defendant has a substantial defence and has raised triable issues and is entitled to unconditional leave to defend the suit. 6. In the circumstances, the defendant is granted unconditional leave to defend the suit. The suit be transferred to the list of commercial causes. Written Statement be filed within 30 days. The Affidavit of Documents be filed within six weeks thereafter. Discovery and Inspection within 8 4 weeks thereafter. 7. The Summons for Judgment is dismissed. (A.A. SAYED,J.) .....