1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.30 OF 2008 IN SUMMARY SUIT NO.507 OF 2007 MR. DARIO DEZIO ..PLAINTIFF VS. LITTLE BEVERAGES INDIA PVT LTD. ..DEFENDANTS Mr. V.Chandrashekhar for the Plaintiff Mr. Ramesh Jain for the Defendants CORAM: SMT ROSHAN DALVI, J. DATED: 27 th February, 2009 P.C.: 1. The suit is filed upon the account of the Plaintiff in the Defendant's books being the Defendant's ledger account for the years 2003- 04 and 2004- 05. It is the Plaintiff's case that the Plaintiff rendered certain professional services as Chief Chef of Italian Food in the Defendant's chain of restaurants. The Defendant agreed to pay certain fees in the form of commission @ 20% of the monthly sale in certain restaurant of the Defendant. For such payment the Defendant maintained the Plaintiff's account in its books. The Defendant deducted TDS from the amount payable to the 2 Plaintiff as per the statutory requirement. The balance amount is the amount payable to the Plaintiff as specifically admitted by the Defendants by virtue of maintenance of Defendant's ledger account in writing. It is the Plaintiff's case that, that constitutes a contract between the parties since the Plaintiff has accepted the amount shown by the Defendant as having been kept in his books of account by the Defendant. 2. It is the Defendant's case that there was only an oral contract of employment pleaded by the Plaintiff. The terms and conditions of the contract are not in writing. Hence the Defendant contains that the account of the Plaintiff in the Defendant's books is not under any written contract between the parties. It is the amount shown at the foot of the Defendant's account which the Plaintiff is required to prove and hence the suit is not maintainable as summary suit. 3. The Defendant also contends that the Plaintiff abruptly stopped attending the Defendant's restaurant. He discloses certain conditional information to the outsiders. He did not perform his duties satisfactory. Hence the Defendant contends that it has a substantial defence in the suit. 4. All that is to be seen is whether the suit is maintainable as a 3 summary suit, upon the Plaintiff's account maintained by the Defendant itself. Once that is seen, the Defendant will be required to separately sue the Plaintiff, for the other defences. The Defendant has not filed any counter claim for any specified amount and hence other contentions raised by the Defendant cannot form a part of the defence to the amount payable under the account kept by the Defendant itself. 5. In the full bench judgment of this court in the case of Jyotsna K. Valia Vs. T.S.Parekh & Co. reported in 2007 (4) ALL MR 718, it has been held in paragraph 29 that a summary suit would lie on a settled account duly confirmed by the Defendant as that would constitute an acknowledgment by the Defendant in the ledger in which mutual accounts have been entered and the accounts settled between the parties . It is held that such settled account gives rise to a written contract with a promise to pay the amount settled. Therefore, a summary suit would lie on settled accounts duly confirmed by the Defendants. 6. In this case the Plaintiff has not sued upon the account kept by the Plaintiff himself which the Defendant has not confirmed wholly or in part. It is the account maintained by the Defendant itself which the Plaintiff has accepted. Hence 4 the amount payable to the Plaintiff upon such acceptance, is the liquidated amount mentioned in the account being the ledger maintained by the Defendant itself. The true test of determination whether it would constitute a written contract is that the Defendant could not challenge the account kept by itself. Hence the denial of the amount payable as shown in the Defendant's own account books is of absolutely no substance. 7. In any event the account maintained by the Defendants shows the admission of the liability of the Defendant. To that extent the Plaintiff would be entitled to a judgment on admission under the provisions or Order 12 Rule 6 of the CPC. It may be mentioned that under the aforesaid provision any admission of fact made even otherwise then in the pleading, be it oral or written, at any stage of the suit, would entitle the Plaintiff to a judgment without waiting for determination of any other question between the parties. Under the provisions of Order 37 Rule 7 of the CPC the procedure of granting judgment on admission would apply also to a summary suit. 8. There is no substantial defence shown by the Defendant to the account of the Plaintiff maintained by the Defendant itself in its own ledger. 5 9. The Plaintiff has further claimed interest @ 15% p.a. on the amount shown in the account of the Plaintiff in the Defendant's books. There is no written agreement for payment of any interest. Hence no interest can be granted to the Plaintiff in this summons for judgment. 10. The Plaintiff has paid separate court fees for the amount payable in each year claimed by the Plaintiff. 11. Hence the following order: The Defendant shall deposit the entire principal amount of Rs.1,48,200 /- and Rs.4,417,68/- in this court within 8 weeks from today. The prothonotary & senior master shall invest the said amount initially for a period of 37 months, if deposited. The Defendant shall be entitled to file its written statement, if the amount is deposited. In that case the Defendants shall file written statement within 30 days of the deposit of the amount. If the amount is not deposited, the suit shall be placed on board for exparte decree. (Smt. Roshan Dalvi, J)