1 SJ489.07.sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 489 OF 2007 IN SUMMARY SUIT NO. 2277 OF 2007 Balkrishna Joshi. ... Plaintiff. V/s. Malwani Savli Co-operative Housing Society Limited. ... Defendants. Mr. P.V. Nichani i/b. M/s. P.V. Nichani & Co. for the Plaintiff. None for the Defendants. CORAM : R.Y. GANOO, J. DATED : 21st DECEMBER 2010. P.C. :- The Plaintiff, is the proprietor of M/s. Himgiri Constructions Company. According to the Plaintiff, his firm had carried out the work for the Defendants and the Plaintiff was entitled to recover monies from the Defendants and that is how the present Suit is filed for recovery of monies towards the work carried out. In addition to the claim towards cost of work done, the Plaintiff has claimed a sum of Rs.4.00 lakhs being the amount placed with the Defendants as a retention amount. According to the Plaintiff the construction was carried out in June 2003 and the retention amount was to be retained for one year and the said amount has to be repaid by the Defendant in June 2004. The Plaintiff claims that the 2 SJ489.07.sxw Defendants are liable to repay the said amount of Rs.4.00 lakhs. 2. In support of the claim of the Plaintiff that the Defendants are liable to pay the Suit claim, the Plaintiff has relied upon the extracts from the Books of Accounts maintained by the Defendants such as balance-sheet as of 31st March 2005 which includes list of creditors. According to the Plaintiff, the name of the Plaintiff appears in the list of sundry creditors as of 31st March 2005 in regard to both the items viz. the charges for the construction work carried out and amount in the nature of retention amount. 3. The Defendants have not filed any reply to this Summons for Judgment. 4. Even though the Defendants have not filed affidavit in reply, it became necessary for the Court to ascertain whether the Plaintiff can file Summary Suit for recovery of monies. 5. It is in this context, I have heard learned Counsel on behalf of the Plaintiff. He pointed out that in the balance- sheet maintained by the Defendants, name of the Plaintiff’s firm is mentioned as sundry debtors and that amounts to the admission of liability on the part of the Defendants. According to him, the accounts were settled by the Defendants – Society and have disclosed the name of the Plaintiff’s firm as creditor and that is sufficient to bring the case within the ambit of 3 SJ489.07.sxw Order XXXVII Rule 1 of C.P.C. In support of this contention he relied upon the Judgment in the case of Jyotsna K. Valia V/s. T.S. Parekh and Company reported in 2007 (3) Bombay Case Reporter 772. 6. I have heard learned Counsel Mr. Nichani for the Plaintiff. At this stage one may not go into the correctness of the Books of Account maintained by the Defendants. However, the question is whether the Suit based on these Books of Account can be filed as a Summary Suit. 7. After having perused Judgment mentioned above, I am inclined to observe that the case of the Plaintiff does not fall within the term “settled account or account stated”. What is expected by the term “settled account or account stated” is viz. between the Plaintiff and the Defendant, accounts are to be drawn up particularly in the Books of Accounts maintained by the Plaintiff and the Defendant or his representative must accept this account as true and correct for the purposes of creating a liability in favour of the Plaintiff. The term account settled or stated would mean that both the sides have arrived at a conclusion that a particular amount of money is payable to the Plaintiff. Today, merely because the Defendants have mentioned the name of the Plaintiff as a list of sundry creditors with the amount as against the name of the Plaintiff would not mean that the account between the Plaintiff and the Defendants is settled as is understood within the meaning of the term “settled account or account stated”. The 4 SJ489.07.sxw requirements mentioned in paragraphs 28 and 29 of the aforesaid Judgment are not complied with. The claim of the Plaintiff does not fall within the parameters of Order XXXVII Rule 1 of C.P.C. as such the Plaintiff could not have instituted the present Suit as a Summary Suit. Hence, the Defendants are entitled to unconditional leave to defend the Suit. 8. Hence, following order is passed to dispose of Summons for Judgment :- (i) Unconditional leave to defend the Suit is granted to the Defendants. (ii) The Defendants to file written statement on or before 21st February 2011. (iii) The Defendants to serve copy of the written statement upon Advocate for the Plaintiff within 10 days from filing the same in the Office. (iv) There shall be no order as to costs. (v) The Plaintiff to intimate text of this order to the Defendants. (R.Y. GANOO, J.)