1 sj290-08 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION rpa SUMMONS FOR JUDGMENT 290 OF 2008 IN SUIT NO. 398 OF 2008 Channel 2C Technolgies Pvt. Ltd. .. Plaintiffs V/s. Filmkunj Private Ltd. .. Defendants .... Mr. J. P. Sen a/w. Mr. S. V. Kadam i/b. M/s. Kadam & Co. for the plaintiffs. Mr. Virendra Tulzapurkar, Senior Counsel i/b. M/s. Desai Desai & Co. for the defendants. .... CORAM : A. S. OKA, J. DATE : JANUARY 21, 2011. P.C. Heard the learned counsel appearing for the plaintiffs in support of this Summons for Judgment and the learned senior counsel appearing for the respondents. The suit is for recovery of a sum of Rs.35,31,068/- together with interest on the principal amount of Rs.10,00,000/- at the rate of 18% per annum. The plaintiffs are is relying upon agreement dated 5th May, 2000, between the parties. According to the case of the plaintiffs, the defendants assigned the sole and exclusive rights of telecasting or 2 sj290-08 broadcasting over the Internet or worldwide web, the clips of films in Hindi language in colour mentioned in the schedule to the agreement. It is alleged that though plaintiffs paid a sum of Rs. 10,00,000/- to the defendants, the negatives of the films or publicity material was not supplied by the defendant in terms of the agreement. One of the objections raised by the defendants is that the summary suit is not maintainable in as much as the claim for refund of Rs.10,00,000/- with interest thereon is not based on the contract. 2. The learned counsel appearing for the plaintiffs submitted that the amount of Rs.10,00,000/- was paid by the plaintiffs to the defendants under the contract and the claim for recovery is based on the terms of the contract as the defendants have not fulfilled the terms. The learned counsel submitted that a summary suit is maintainable. 3. As per the averments made in the plaint, the amount of Rs. 10,00,000/- was paid by the plaintiffs to the defendants under the said contract. In effect, the case of the plaintiffs is that as the defendants have committed breach of the contract, the plaintiffs 3 sj290-08 are entitled to refund. Admittedly, there is no stipulation in the contract which provides for refund of the amount under any contingency. Thus, the claim in the suit cannot be said to be a claim for liquidated demand in money arising on a written contract. Thus, apart from the other issues raised by the defendants, the issue raised regarding the maintainability of the summary suit is a triable issue. Hence, the defendants are entitled to unconditional leave to defend. 4. Accordingly, Summons for Judgment is disposed of by passing following order : :: O R D E R :: i. The defendants are granted unconditional leave to defend the suit. Written statement shall be filed within 12 weeks. ii. Suit shall be transferred to the list of commercial causes. JUDGE