SJ.225-07 in SS.558-07 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.255 OF 2007 IN SUMMARY SUIT NO.558 OF 2007 CIPLA Ltd .. Plaintiff versus Triplan Aqua Systems Pvt Ltd .. Defendant Mr.S.Udeshi for the plaintiff. Mr.S.G.Gokhale for the defendant. CORAM : R.S.MOHITE, J. DATE : 10th August 2010. P.C.: . The learned advocate for defendant states that he is now instructed to appear and that he has filed pracipie for withdrawal of the chamber order seeking discharge. The advocate for plaintiff files the compilation of documents alongwith affidavit in support of compilation which is taken on record. The documents are as mentioned in schedules to affidavit in support. Both the advocates are heard. 2. This is a summons for judgment taken out by the original plaintiff. The plaintiff has filed a summary suit for recovery of sum of Rs.9,71,846/- being the amount paid to the defendant under written contract dated 15th October SJ.225-07 in SS.558-07 2 2001. On perusal of the said written contract I find that the same did not contemplate return of any money. Under the written contract 10% money was payable to the defendants as advance against bank guarantee and 80% was to be paid after inspection before dispatch of the proforma invoice. The amount claimed compromise the aforesaid 90% of the total payment which the plaintiff was required to be made to defendant. It is not in dispute that the plant was actually delivered on 26th May 2002. The record indicates that the plant was accepted and the grievance was made for the first time on 6th December 2002 when the plaintiff wrote to the defendant indicating that there were some defects. Thereafter, there is a correspondence right up to the year 2005. In the letters written by the defendants to the plaintiffs dated 10th January 2003 and 15th April 2003 and 6th June 2003 there is an indication that according to the defendants they have rectified the defects and requested the plaintiffs to come for testing. Subsequent correspondence however indicates that the plaintiffs cancelled contract and asked for refund of the advances paid. The amount as claimed, in my view, does not arise from a written contract. It is more in the nature of damages. In the circumstances, in my view, the suit cannot be filed as summary suit. Unconditional leave is, therefore, granted and summons for judgment is disposed of. The suit to be treated as commercial causes. (R.S.MOHITE, J)