1 mp t IN THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGEMENT NO. 137 OF 2008 IN SUMMARY SUIT NO. 547 OF 2008 M/s.Veco Engineering Ltd. .. Plaintiff versus Mustan Tambawala .. Defendant ... Mr.Zal Andhyarujina with Ms.Anuradha Bhansali and Mr.Parag Patil i/b M/s.Hariani & Co, for the plaintiff. Mr.Jayant Khatodiya i/b Mukesh Jain for the defendant. CORAM : D.G. KARNIK, J DATED : 1st April 2009 P.C.: 1. This Summons for Judgement arises out of a suit filed by the plaintiff for recovery of a sum of Rs.15,00,000/- (Rupees Fifteen lakhs) allegedly paid 2 to the defendant by way of a security deposit under a lease deed dated 1st March 2002. The defendant has denied the liability to pay. Though the defendant has not expressly denied the receipt of the sum of Rs.15,00,000/- in the affidavit in reply, he has stated that he is entitled to set off other claims which he has against the plaintiff. The defendant has therefore prayed for grant of unconditional leave to defend. 2. The suit of the plaintiff is based upon a lease deed dated 1st March 2002 which according to the plaintiff, constitutes a written contract under which money is payable. Under the said lease, flat belonging to the defendant was taken on lease by plaintiff who paid to the defendant a sum of Rs.15,00,000/- as a security deposit. The plaintiff vacated the flat and the defendant vide his endorsement on the plaintiff’s letter dated 8th April 2007 admitted receipt of the vacant possession. However, by this endorsement, the defendant did not agree to return the deposit but reserved the right to comment upon it subsequently. 3. Money is claimed as dune under the lease deed dated 1st March 2002. The lease is for a period of three years and therefore requires compulsory 3 registration. The lease deed is neither registered nor it is appropriately stamped rendering it inadmissible in evidence. In the circumstances, prima facie the document on lease is not admissible in evidence. 4. Learned counsel for the plaintiff however submitted that though the document is styled as "lease deed" it was in fact an agreement of leave and licence. Whether the document constitutes the lease deed or leave and licence and whether it is admissible in evidence gives rise to a triable issue. 6. In the circumstances, defendant is granted an unconditional leave to defend the suit. The defendant shall file written statement within eight weeks. On defendant filing of the written statement, suit shall stand transferred to the list of commercial causes. (D.G. KARNIK, J)