1 sj392-09 ttm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.392 OF 2009 IN SUMMARY SUIT NO.1822 OF 2009 Reuters India Pvt.Ltd. .. Plaintiffs Vs. Dimensions Consulting P.Ltd. .. Defendants Ms.Kavita Brid i/b M/s.Dholakia Law Associates for the plaintiffs Mr.Mahesh Londhe i/b M/s.Sanjay Udeshi and Co. for the defendants CORAM : S.C.Dharmadhikari, J. DATE : December 10, 2010 P.C. : 1. The suit is filed as summary suit on the basis of a written contract and para 14 and 15 of the plaint reads as under:- 2 sj392-09 14. “ The liability in respect of the suit claim arises out of commercial transaction under a written contract and the service fees / charges are payable under outstanding invoices raised as per clause 3.3 of the Contract. 15. The suit herein is filed under the provisions of Order XXXVII of the Code of Civil Procedure 1908, for a liquidated sum of monies due under a written contract and invoices raised for services provided to the defendants under the written contract and there is no relief claimed in the suit that falls beyond the scope of Rule 2 of the said Order. ” 2. It is stated that the plaintiffs are provider of service relating to information and information technology. The defendant is a Private Limited Company and had approached the plaintiff with a request that they would subscribe to certain services provided by the plaintiffs and therefore, they executed written contract known as Reuters Services Contract. 3 sj392-09 3. It is submitted that by executing the documents and the agreement, the defendants have accepted and agreed to abide by the terms and conditions and it is then stated that the plaintiffs commenced the services which were used by the defendants. Inspite of the beneficial use of the services by defendants, they defaulted in payment of the invoice for the month of January 2008 for services provided under the agreement, despite clear terms and conditions. The plaintiff, thus, states that the defendants raised an issue with regard to this invoice but the plaintiffs did not accept their case and called upon them to pay the monies as per the invoice. 4. Instead of making payment of the amount plaintiffs were surprised to receive email dt.24.01.08 requesting them to terminate the agreement with immediate effect and cancel the current invoice. The plaintiffs stated that the services can be terminated only on 1.10.08 in accordance with the terms of the clause 2 of the Contract and any termination prior thereof cannot bind them. Therefore, the amount under the pending invoice should be paid and that is how this summary suit is filed. 5. The defendants in the reply have stated that the services were invalid and defective and there is suppression of fact because prior to the second invoice 4 sj392-09 but immediately after first invoice was received, the defendants had by their email pointed out the defects to the plaintiffs. These emails have been suppressed by the plaintiffs. In rejoinder, it is stated that the emails were received and in any event the claim under the invoice should have been honoured. 6. On hearing both sides and perusing the plaint and the annexures, I am satisfied that this is a case where the defendants deserve unconditional leave to defend. Firstly, because the claim is stated to be based on a written contract between parties and services charges payable under outstanding invoice as raised under clause 3.3 of the contract. However, plaintiffs themselves in the plaint state that the default in the payment of invoice for the month of January 2008 was committed and the defendants sought to raise issues with regard to the invoice, but the objection raised by the defendants by email dt.24.1.08 has been turned down by the plaintiff by their email dt.25.1.08. 7. This clearly shows that there is a bonafide dispute with regard to the claim and whether the services could have been foisted as alleged despite the objection raised to its quality by the defendants. Therefore, the grievance of the plaintiffs is not based on the unpaid invoice but the abrupt termination as alleged by 5 sj392-09 them. It is stated that clause 2.2 is the governing clause whereas defendants rely upon clause 4.3 to justify their act. In such circumstances, triable issues arise with regard to the claim of the plaintiff. That cannot be made subject matter of summary suit. 8. Therefore, there will be unconditional leave to defend. Suit is transferred to the list of commercial causes. Usual directions to file written statement, discovery and inspection. Summons for Judgment is disposed off in these terms. ( S.C.Dharmadhikari, J. )