1 sj.271.09 kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.271 OF 2009 IN SUMMARY SUIT NO.481 OF 2009 Reuters India Pvt.Ltd.. ..Plaintiffs -Versus- S.K.Sonthalia Securities Pvt.Ltd.. ..Defendants .......... Padmaja Dholakia i/b Dholakia Law Associates, for the Plaintiffs. K.G.S.Tripathi, for the Defendants. .......... CORAM : S.C.DHARMADHIKARI, J. DATE : 18th October, 2010. P.C. 1 Heard the learned counsel appearing for the Plaintiffs and the Defendants. Perused the plaint and annexures thereto and the affidavits filed on record. The suit is filed to recover a sum of Rs. 1,67,721.88 stated to be due and payable under the agreement dated 19.12.2006 between the Plaintiffs and the Defendants. 2 It is argued before me by the Plaintiffs that the amount is claimed in respect of the invoices which have remained unpaid under the agreement which was executed between the parties. 3 It is submitted that the Plaintiffs are the world leaders in the field of information and news. In or about December, 2006 the Defendants subscribed to certain services provided by the Plaintiffs and that is how the service contract dated 19.12.2006 came to be executed. 4 My attention is invited to certain clauses of the contract particularly dealing with termination of the same. It is stated that the Defendants paid Rs.61,322/- by a cheque dated 30.11.2006 towards the 2 sj.271.09 security deposit for the services being provided to them by the Plaintiffs. It is stated that the Defendants also executed a Global Exchange Order Form dated 19.12.2006 for the services listed therein and agreed to pay a sum of USD 12.60 for the said services. It is stated that prior to 2006 the Defendants were receiving “moneyline” services from Indian Quotations Systems Private Limited in respect of which services the Defendants had provided security deposit in the sum of Rs.62,081/-. Subsequently, these services were taken over by the Plaintiffs in June, 2006, therefore, all existing clients of Indian Quotations Systems Private Limited were informed about the said merger. They were given option to continue the services from the Plaintiffs. The Defendants were also informed about this option and the Defendants subscribed this service by executing the contract dated 19.12.2006. Therefore, the security deposit paid to Indian Quotations Systems Private Limited of Rs.62,081/- was transferred to the Plaintiffs’ account together with deposit paid by the Defendants in pursuance of the agreement dated 19.12.2006. In such circumstances, in paragraph No.6 it is averred that all this constitutes a written agreement/ contract between the parties. The services were provided and they were utilized for which the Defendants failed to make payment and abruptly issued an email dated 12.12.2007 discontinuing the services of the Plaintiffs w.e.f. 01.04.2008. In this email, copy of which is at Exhibit-E, it was stated that all payments were made upto December, 2007. 5 The Plaintiffs have relied upon the clauses of the agreement and particularly notice period of 12 months stipulated therein prior to such termination. In other words, if the Defendants had to terminate the agreement earlier, then, they may do it in accordance with clause-4.1 of the contract. It is stated that the Defendants failed to respond to the email dated 01.02.2008 from the Plaintiffs and they did not make payment for 3 sj.271.09 the balance of invoices for the quarter of January-March, 2008 after adjustment of the deposit of Rs.61,322/-. Therefore, the Advocate’s notice was issued and the stand of the Defendants was that they have already terminated the agreement from 01.04.2008. 6 From reading of the plaint it is apparent that what the Plaintiffs are claiming is not just amount under the invoices but also liability of the liquidated damages in terms of clause-4.8 of the contract and that is how the entire plaint reads. The averments in plaint and the statements in correspondence cannot be seen in isolation. Now an attempt to argue that it is an amount under the invoices that is claimed, is not appropriate. Further, the Defendants have pointed out that the invoice, copy of which is at Exhibit-N to the plaint, seeks to include certain sums which are stated to be for the National Stock Exchange of India and the Bombay Stock Exchange. The Defendants in their affidavit in reply have pointed out that the amount till December, 2007 has been paid. The amount of Rs.61,322/- was in addition to Rs.62,081/- which is lying with the Plaintiffs. 7 It is alleged that the Plaintiffs did not refund the balance amount of the security deposit but kept on sending bills. There is nothing due and payable because clause-2.2(a) was for giving three months’ prior notice before termination of services and that is what the Defendants have done. Clause-4.8 is to recover the damages which the suit purports to do. 8 Thus, the stand taken in the reply and rejoinder together with allegations in the plaint with regard to the claim of the Plaintiffs and liability of the Defendants, raises a triable issue. Paragraph No.14 of the affidavit in rejoinder would indicate how the amount is claimed. Thus, this claim is arising under the running account and raising a triable issue with regard to the entitlement of the Plaintiffs. 4 sj.271.09 9 For all these reasons there would be unconditional leave to defend. 10 Reliance is placed on the order in another suit of the Plaintiffs but that would indicate that as far as the order dated 25.08.2005 in Summons for Judgment No.402/2004 in Summary Suit No. 1028/2004 (Reuters India Pvt.Ltd.. Vs. Pannalal Mahesh Chandra Jewellers), there were no disputes and the amounts under the invoices were clearly claimed. The dispute sought to be raised was about increase in the price. The Court noted that the Defendants did not terminate the services. The request was with regard to the reduction in the prices. The Court noted in paragraph No.8 of the order that the agreement/contract was kept alive, therefore, both the defences were not tenable and thus, granted conditional leave to defend on deposit of certain sum but for the balance, Court granted, unconditional leave. This order is clearly distinguishable. 11 As far as the order passed in Summons for Judgment No. 103/2005 in Summary Suit No.3103/2004 (Reuters India Pvt.Ltd. Vs. M.N.Prabhakar) is concerned, there was no affidavit in reply and there was no defence to the suit. It is in such circumstances, the suit itself came to be decreed by this Court. How these orders will assist the Plaintiffs in this case is not explained at all. 12 In such circumstances, the Defendants are granted unconditional leave to defend the suit. Accordingly, the summons for judgment is disposed of with usual direction to file the Written Statement. The suit is transferred to the list of commercial causes. (S.C. Dharmadhikari, J)