1 sj396-09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION rpa SUMMONS FOR JUDGMENT NO. 396 OF 2009 IN SUMMARY SUIT NO. 842 OF 2003 Hathway Cables & Datacom Ltd. .. Plaintiffs V/s. M/s. Lotus Builders & Developers .. Defendants .... Mr. J. P. Sen a/w. Ms. Jyoti Ghag i/b. Thakore Jariwala & Associates for the plaintiffs. Mr. G. Nagarsekar a/w. Ms. S. Taneja for defendant nos. 1 to 3. .... CORAM : R. S. MOHITE, J. DATE : JULY 26, 2010. P.C. This is summons for judgment taken out by the original plaintiffs who have filed a suit for recovery of an amount of Rs. 7,00,000/-, which is the amount received by the defendants under Leave and Licence Agreement executed between the parties on 5th October, 1998. The receipts of the said amount is not disputed by the defendants. The agreement recites that the possession of the premises was to be handed over to the licensees on or before 1st January, 1999. Exhibit 'B' to the plaint indicates that the date of agreement is 5th October, 1998, and the 2 sj396-09 amount of Rs.7,00,000/- is towards refundable security deposit. 2. It is not pointed out by the defendants that possession was not given by them on 1st January, 1999. It is their contentions that they could not give possession as the premises were being furnished. The record, however, indicates that the first letter written by the defendants to the plaintiffs is dated 12th October, 2001 i.e. one year and more than nine months, after the date of the Leave and Licence Agreement i.e. after the execution of the said agreement. The furnishing of the premises took some time and the defendants, in fact, incurred costs which exceed the claim of the plaintiffs. This is not reflected in the first letter dated 12th October, 2001. In this view of the matter, I find that there is substance in the defence raised. The other defences taken by the defendants are regarding jurisdiction of this Court. They contend that this Court will have no jurisdiction in view of Section 41 of the Presidency Small Causes Court Act, 1882. Section 41 is reproduced hereunder : “ ” 3. In my view, this cannot be said to be a suit for recovery of any licence fees or rent, as a security deposit cannot be said to be 'license fees' or 'rent'. The issue is covered by the Judgment 3 sj396-09 of this Court in the case of RMC Readymix (I) P. Ltd. V/s. Kanayo Khubchand Motwani, 2006(4) BOM. C.R. 437. In this view of the matter, leave to defend is granted subject to deposit of Rs. 7,00,000/- in this Court, within a period of four weeks from today. In case the amount is deposited, the Prothonotary and Senior Master shall deposit the amount as fixed deposit in a Nationalized Bank, initially for a period of three years and the deposit will be renewed on yearly basis, till the disposal of the suit. 4. Written Statement to be filed within a period of eight weeks from today. 5. Summons for Judgment is disposed of. [ R.S. MOHITE, J. ]