( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.438 OF 2007 SUMMONS FOR JUDGMENT NO.438 OF 2007 SUMMONS FOR JUDGMENT NO.438 OF 2007 IN IN IN SUMMARY SUIT NO.2480 OF 2006 SUMMARY SUIT NO.2480 OF 2006 SUMMARY SUIT NO.2480 OF 2006 KJMC Global Markets (India) Ltd. 168, Atlanta, Nariman Point, Mumbai-400 021 ...Plaintiffs Versus Satyagiri Shipping Co. Ltd. Gammon House, Vir Savarkar Marg, Prabhadevi, Mumbai - 400 025 ...Defendants Mr.Bulchandani with Mr.Anil Patel for the Plaintiffs. Mr.V.R. Dhond i/b. M/s.Khaitan & Jaykar for the Defendants. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. DATED : 16th December, 2008. DATED : 16th December, 2008. DATED : 16th December, 2008. ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : . The present Suit is filed by the Plaintiffs for recovery of Rs.18,00,000/- and interest as set out in the plaint. The Suit is filed on the basis of a ( 2 ) written agreement between Plaintiffs and the Defendants, being agreement dated 24th February, 2003 (hereinafter referred to as "the suit agreement"). 2. On account of suit agreement, Plaintiffs were to render certain services to the Defendants and for that Plaintiffs were to get compensation. The amount of compensation was to be received by the Plaintiffs in accordance with clause (5) of the suit agreement. According to Plaintiffs the first part of the said clause related to professional charges and the second part related to the pocket expenses. The Plaintiffs have filed this Suit for recovery of a sum of Rs.18,00,000/- towards pocket expenses for the period 1st August, 2003 till 31st July, 2006 at the rate of Rs.50,000/- per month. The agreement was entered into in the month of February, 2003. Therefore, the Plaintiffs have given up their claim prior to the period 1st August, 2003. 3. Plaintiffs have approached this Court on the basis of clause (5) which runs as follows :- "SGSL shall pay Rs.50,000/- per month towards out of pocket expenses to be paid on 1st of every month from 1st January, 2003 till commencement." 4. According to the Plaintiffs, the liability to ( 3 ) pay pocket expenses at the rate of Rs.50,000/- per month arose on the basis of the aforesaid clause and as the Defendants failed to pay the said amount for a substantial period, the Plaintiffs were required to file the present Suit. 5. The Defendants have raised various contentions to oppose this Summons for Judgment and I shall deal with the said contentions and give my rulings on the same. It has been the contention of the Defendants that a sum of Rs.50,000/- per month was payable to the Plaintiffs provided Plaintiffs render services to the Defendants. According to the Defendants, no services were rendered as per the suit agreement and therefore Plaintiffs were not entitled to any pocket expenses and therefore the claim for the pocket expenses is not maintainable and this by itself is a defence which raises a triable issue. I have considered this submission and I am inclined to reject the same. 6. The close perusal of clause (5) which dealt with payment of compensation to the Plaintiffs by the Defendants is divided in two parts. First part of the said clause relates to payment on the basis of percentage for the services rendered such as obtaining long term loan or getting non-fund based exposure required for the project. The second part relates to ( 4 ) the payment of pocket expenses. It is difficult to accept that the Plaintiffs were to get pocket expenses per month only upon they performing some job under the agreement and showering some benefits upon the Defendants in terms of the agreement. In my view, the terms of the agreement will have to be read as it is without adding what is sought to be done by the Counsel for the Defendants. If the terms have been drafted to say that the Defendants were to pay to the Plaintiffs every month pocket expenses and there is no other clause qualifying the payment of these pocket expenses, in my view, the Plaintiffs were entitled to pocket expenses per month and they were not required to show any progress in the matter so long as the agreement is not terminated by the Defendants. It is admitted by the Defendants that till 31st July, 2006 or even till today the suit agreement has not been terminated. Effort was made by the learned Advocate for the Plaintiffs to point out Exhibit "B" to the plaint to show that Defendants were selected as Preferred Bidder. This was done to show that Plaintiffs had done work for the Defendants. Considering the above discussion it is not necessary to go into question whether any work was done by the Plaintiffs in terms of suit agreement. As a result of this, stand taken by the Defendants that the Defendants were required to pay pocket expenses upon ( 5 ) performing some job by Plaintiffs cannot be accepted. 7. It was sought to be argued that the Plaintiffs had raised debit notes for a particular period and it is sought to be argued that in the plaint it is mentioned that the Plaintiffs have raised debit notes for the said period i.e. 1st August, 2003 to 31st July, 2006, and that is how they are entitled for payment. Whereas, in fact, no debit notes are raised for the period for which the Suit is filed. According to learned Counsel Mr.Dhond for the Defendants, if debit notes have not been raised for the period covering the suit period, the Plaintiffs are not entitled for any amount by way of pocket expenses. I am not inclined to accept this argument. From reading of the suit agreement it is seen that there was no requirement on part of the Plaintiffs to raise debit notes from time to time. If debit notes have not been raised, that does not mean that the Plaintiffs are not entitled to recover the sum of Rs.50,000/- from the Defendants on a monthly basis. 8. It was argued by the learned Counsel for the Defendants that the Summons for Judgment has been taken out at a belated stage and therefore the Defendants are entitled to unconditional leave. He had drawn my attention to Rules 221 and 227 and had ( 6 ) submitted that on joint reading of the said rules this Court should held that Summons for Judgment ought to have been taken out within six months from the date of filing vakalatnama and if there has been delay, then Summons for Judgment ought to be dismissed by granting unconditional leave. In so far as this aspect is concerned, the Court is informed that the Suit was filed on 17th August, 2006. Learned Counsel for the Defendants stated that the vakalatnama was filed some time in the September, 2006. The Summons for Judgment has been taken out in October, 2007. It is required to be mentioned that prior to taking out this Summons for Judgment, the Plaintiffs had filed a Company Petition No.567 of 2006 for recovery of the aforesaid amount of pocket expenses and the said Company Petition came to be dismissed on 21st March, 2007, and thereafter the Summons for Judgment was taken out in the month of October, 2007. Considering the relevant dates, it is clear that the Summons for Judgment was taken out after a period of about six months and few days after the disposal of the Company Petition. In my view, after a joint reading of Rules 221 and 227, it would be difficult to accept that the submission of the learned Counsel for the Defendants that the Summons for Judgment ought to have been taken out within six months from the date of the filing of the vakalatnama. The Summons for Judgment should be taken ( 7 ) out as early as possible. In the present case, the Plaintiffs had filed the Company Petition in the year 2006 and prior to that the Summary Suit was filed. After the disposal of the Company Petition, the Summons for Judgment has been taken out within a span of about six months and few days. In my view, the conduct on part of the Plaintiffs is not such by which this Court should hold that the Summons for Judgment has been taken out at the belated stage. 9. It was sought to be argued that the Court while dismissing the Company Petition the Court had observed that evidence may have to be led at the time of the trial of the Suit i.e. this Suit being suit for recovery of the pocket expenses. It was submitted by the Counsel for the Defendants that since the learned Judge has expressed a view that evidence would required to be led, he in turn has observed that triable issues are raised and therefore this Court should follow the view taken by the learned Judge deciding the Company Petition and grant unconditional leave to the Defendants. I am not inclined to accept this submission. In my view, the observations were prima facie and were made in the Company Petition. On the basis of the said observations, it cannot be said that the Defendants have made out a case for grant of unconditional leave. ( 8 ) 10. Learned Counsel for the Defendants had cited the judgment in the case of Mechelec Engineers & Manufacturers V/s. Basic Equipment Corporation reported in 1976 4 SCC 687. He drew my attention to the paragraph 8 of the said judgment where the Supreme Court has formulated points and has given indication as to how the Court attending to Summons for Judgment should consider the defence put up by the Defendants and pass an order in Summons for Judgment. After having read the said judgment and applying it to the facts of this case, I am not inclined to accept the stand of the Defendants that the Defendants are entitled to unconditional leave to defend. Considering the case as a whole, I am inclined to observe that this is not the case where the Court should make a Summons for Judgment absolute. It would be proper in the facts and circumstances of the case to direct the Defendants to deposit a sum of Rs.12,00,000/- and then permit them to defend the Suit. 11. For the reasons mentioned aforesaid, I pass the following order :- "O R D E R" "O R D E R" "O R D E R" ( 9 ) (1). Upon the Defendants depositing a sum of Rs.12,00,000/- in this Court on or before 23rd February, 2009, Defendants are permitted to file written statement and defend the Suit. (2). Suit stands adjourned to 27th February, 2009, for filing written statement. (3). Summons for Judgment stands disposed of in above terms with no order as to costs. (R.Y. GANOO, J.) (R.Y. GANOO, J.) (R.Y. GANOO, J.)