SJ189-10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGEMENT NO.189 OF 2009 IN SUMMARY SUIT NO.923 OF 2009 The Indian Express Ltd. .. Plaintiff Versus Dilip C. Shah .. Defendants Mr.Vinayak Shete i/b. Ms.Poorvi Kamani for plaintiff Mr.V.M.Bharadwaj for defendants CORAM : S.C.DHARMADHIKARI, J. DATE : 11th October 2010. P.C.: 1] This is a suit filed for recovery of a sum of Rs.8,50,531/-. 2] The plaintiffs are a company incorporated under the provisions of the Companies Act and carrying on the business of printing and publishing of newspapers and magazines and other publications. Plaintiff’s business publication division publishes a magazine called “Express Pharma Pulse”. These are niche magazines and they are SJ189-10 2 circulated through out India in which advertisements are carried directly from the advertisers or through advertising agencies on behalf of their clients. The plaintiffs state that when advertisements are received from the agency, they have no inter-connection with the clients of the advertising agencies. This statement in the plaint has some significance because the plaintiffs have been approached by the defendant who is sole proprietor of advertising agency. He represented that plaintiff’s newspaper should carry advertisement of his client M/s.Swiss Glasscoats Ltd., in the publication and magazine called Express Pharma Pulse. The advertisement was released by the defendant and which was published from January 2007 to July 2007. Total fourteen advertisements were released and according to plaintiff the charges for the same were Rs.50,000/- per insertion. It is stated that defendant was entitled for a commission of 15% on the rate agreed. According to them, they give trade discount of 15% on the invoice amount so also credit period. 3] Annexure B-1 to B-14 are the details of the magazines in which SJ189-10 3 advertisements were released. Prior to that Annexure A is a copy of the release order dated 8th January 2007 and Annexures C-1 to C-14 are the copies of the invoices. 4] Plaintiffs have clarified that during the course of the correspondence, the defendant made a grievance that one of the employee of plaintiff Mr.Harish Walecha had approached him and requested for some money and this sort of an allegation is seriously affecting reputation of a newspaper like plaintiff and, therefore, the plaintiff should initiate enquiry against Mr.Walecha. Plaintiffs replied to this letter and stated that defendant should approach plaintiffs with documentary proof and they will surely initiate action against such employee. However, when receipt of such invoices and even the amount that was outstanding has not been denied, then, there was no reason to delay the payment by raising issue of misbehaviour and misconduct of Mr.Walecha. 5] Since the amount was not forthcoming, Advocate’s notice was SJ189-10 4 sent and since the same was received back with remark “refused” this suit is filed. 6] On entering of appearance by defendant, Summons for Judgement has been moved to which two replies have been filed stating therein that the amount is not payable because the said Harish Walecha has approached the defendant and his entire misconduct has been narrated with supporting documents. It is alleged that Mr.Harish Walecha was black-mailing the defendant and threatened that he would expose him in the presence of his client. Since, the defendant did not pay Walecha the monies he demanded, Mr.Walecha went to the office of his client M/s.Swiss Glasscoats and told them that he was getting less rate of Rs.50,000/- but was charging Rs.57,750/- to them. Thus, the entire affidavit contains allegations against the Harish Walecha. In para 5 of the affidavit in reply all that is stated is that the invoices have been received but a oral complaint was made by the defendant with regard to these invoices. Further, the invoices cannot be called written contracts. Thereafter, it is alleged that payments SJ189-10 5 were made in cash and unless and until the plaintiffs take suitable steps to compensate the defendant for the act of their employee, there is no question of payment being made, which is the stand reiterated in the further affidavit on the basis of certain documents. 7] It is on this material that I have heard learned Counsel for parties. 8] It is contended on behalf of the plaintiffs that once the suit is based on the release orders coupled with the invoices together, they constitute written contract under which a determined and liquidated sum of money has been demanded. The rate has been determined and the invoices have been raised on that basis, receipt of the same being undisputed so also there being no denial of the liability thereunder, this court must proceed to pass appropriate orders and make the summons for judgement absolute. 9] On the other hand, Mr.Bharadwaj invited my attention to the SJ189-10 6 documents annexed to the reply affidavit to urge that the defendant has valid defence, firstly because the suit is not maintainable as a summary suit and secondly the plaintiffs are not denying that their employee has committed misconduct which is serious in nature and harming business relations of the parties. In such circumstances, without compensation or damages forthcoming, the defendant cannot be asked to pay the monies under the invoices in question. 10] As far as maintainability of the suit is concerned, Order XXXVII is clear. Mr.Bharadwaj would like me to see the invoices in isolation. However, the suit is based on a written contract as evidenced by the release order together with invoices and there is substance in the contention of the plaintiffs that the suit is maintainable under Order XXXVII of CPC on this basis. 11] As far as the defence raised, true it is that there is some correspondence between the parties, but once services have been rendered, the advertisements published and the invoices accepted SJ189-10 7 without any demur or protest, then, the defendant in order to substantiate the same, must be put to some terms. There cannot be linking of the issues with regard to the conduct of the said Walecha and the liability to pay the money under the invoices. That being clearly admitted and there is correspondence indicating the same, then, the sum under the invoices must be deposited. More so, when all that Mr.Bharadwaj could point out is a discrepancy in relation to one of the invoices which is annexed as C-5 to the plaint. In these circumstances, following order would meet the ends of justice. (a) On the defendant depositing in this court a sum of Rs.5 lakhs within ten weeks from today the suit shall stand transferred to the list of commercial causes with usual orders with regard to filing of written statement, discovery and inspection. (b) In default, consequences in law to follow. (S.C.DHARMADHIKARI, J)