: 1 : SJ-17-09=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.17 OF 2009 IN SUMMARY SUIT NO. 3235 OF 2008 M/s. Shape India Construction Pvt. Ltd. .. Plaintiffs v/s. Oakland Park Co-op. Hsg. Society Ltd. .. Defendants ......... Mrs. A.S. Malvankar for the plaintiffs Ms. S.P. Trivedi i/by M/s. A. Bharat & Co. for the defendants ......... CORAM : R.Y.GANOO, J. DATE : 6th SEPTEMBER,2010. P.C. : 1. This suit is filed for recovery of monies due to plaintiffs for having done painting and plastering work as regards the defendants Society. The defendants society sent purchase order in writing dated 4th September, 2004 and thereafter plaintifs are said to have taken steps to carry out the work. There is no acceptance of the terms and conditions mentioned in the letter dated 4th September, 2004. On account of this, the present suit instituted as and by way of Summary Suit is not maintainable as there is no agreement between the parties to do a particular job on the terms and conditions mutually agreed. : 2 : SJ-17-09=.sxw 2. Apart from the aforesaid observations, there appears to be a substantial dispute as between the plaintiffs and the defendants as regards the nature of work carried out and final amount which may be found to be payable. At one stage, learned Counsel for the plaintiffs had drawn my attention to the admission on the part of the defendants whereby they had stated in letter dated 30th May, 2007 that the Managing Committee has agreed to give a sum of Rs.1,58,000/- and odd. It is noticed that in the purchase order, there is a specific clause that plaintiffs have to furnish Joint Performance Guarantee alongwith M/s. Nitco Paints as set out at sr. no.1 under the heading terms and conditions. According to the defendants said Joint Performance Guarantee has since then not supplied and that is how plaintiffs are not entitled to Rs.1,58,000/- and odd. 3. On consideration of the entire record and having observed that suit cannot be instituted as Summary Suit, defendants are entitled to unconditional leave to defend the suit. Hence, following order is passed to dispose of the summons for judgment. : 3 : SJ-17-09=.sxw ORDER (i) Defendants are granted unconditional leave to defend the suit. Defendants to file written statement directly in the office on or before 25th October, 2010. There shall be no order as to costs. (R.Y.GANOO, J.)