1 sj215.534 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT No.215 OF 2009 in SUMMARY SUIT NO. 534 OF 2009 Puratos Food Ingredients .. Plaintiff vs Ajay Bhasin Defendant Mr.Rafiq with Mr.Santosh Kumar Mishra i.b Singhania & Co for Plaintiff CORAM: S.C.DHARMADHIKARI, J DATED: 9th September, 2010 P.C. 1. The plaintiff invokes Order XXXVII of the Code of Civil procedure to recover the sum of Rs.17,52,984.58 as per particulars of claim marked as Annexure F to the plaint. 2. It is stated that the claim arises out of a written contract evidenced by a MOU copy of which is annexed as Annexure A to the plaint. 2 sj215.534 3. It is urged that the suit is in respect of receipt simplicitor particularly Annexure B because what that evidences is acknowledgment of receipt of a sum of Rs.15 lacs styled as token deposit. The suit arises and it is based on a written contract as evidenced by Annexure A and B. 4. It is not possible to accept this contention for obvious reasons. The MOU copy of which is at Annexure A clearly states that the defendant is a seller and claims to be owner of the premises which are in MIDC area. The plaintiff as a buyer desired to buy the premises. The clause in the agreement is subsequent to the completion of the due diligence and in case reports are clear, the plaintiff-buyer commits to buy the premises for an amount of Rs.8.5 crores. In order to hold premises the plaintiff agrees to submit a token deposit of Rs. 15,00,000/- which the defendant agrees that he will be refund in case necessary permission is not raised within 30 days of signing of the MOU or any extended time by a mutual agreement. Further it is agreed that the defendants will make necessary application to obtain permission and transfer the 3 sj215.534 unit in favour of the plaintiff. The defendant agreed that he will give 30 days time to the plaintiff from the date he completes all the formalities. The plaintiff’s argument today overlooks that an amount of Rs.15,00,000/- was held in trust, without due diligence carried out for which 30 days time was given and therefore the defendant has equally responded by saying that he will hold the premises till completion of due diligence. In case the plaintiff does not honour commitments then right of forfeiture of the defendant is contemplated. 5. The defendant has placed his version on his affidavit and stated that the suit claim is not based on order XXXVII Rule 2 of Code of Civil Procedure and therefore, summary procedure could not be invoked. It is stated that the plaintiffs were interested in purchasing the premises and premises were shown and it was disclosed that the property cannot be transferred for at least 1 to 3 months and therefore, certain amount was paid in advance for being adjusted against the purchase price, It is stated that the defendants disclosed that Rs.60,00,000/- was required for transfer out of which Rs. 4 sj215.534 15,00,000/- have been paid by the plaintiff, balance sum of Rs. 45,00,000/- was not paid. It is in such circumstances that it is stated that forfeiture clause enables the defendant to forfeit the sum of Rs.15,00,000/-. 6. In my view, such being the nature of the arrangement and the summary suit on receipt simpliciter not being maintainable it is doubtful whether Order XXXVII of the Code of Civil Procedure could have been invoked by the plaintiff at all. For these reasons, I am unable to accept the submission of learned counsel appearing for plaintiff. Summons for judgment is dismissed. Defendant is entitled to unconditional leave to defend. Suit transferred to the list of commercial causes with usual directions to file written statement, discovery and inspection. No costs. S.C.Dharmadhikari, J