1 JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 241 OF 2009 IN SUMMARY SUIT NO.951 OF 2009 M/s. F.K. Constructions Co. ... Plaintiffs. V/s. M/s. Kanwal and Kanwal Co-op. Hsg. Soc. Ltd. ... Defendants. Mr. A.S. Rai for the Plaintiffs. Mr. B.G. Vaidya i/b. A.G. Pawar for the Defendants. CORAM : R.Y. GANOO, J. DATED : 28th APRIL 2010. P.C. :- Heard learned Advocates on both sides. The Plaintiffs in their capacity as building contractors had entered into an agreement with the Defendants to carry out repair works. The fact that parties had entered into a transaction is not disputed by the Defendants. As per the terms of the contract, the Defendants while making payment to the Plaintiffs were authorized to retain an amount equivalent to 10% of the running bills which will be raised from time to time. In the 2 present case, the Plaintiffs had sent 5 bills and while raising the bills, the Plaintiffs themselves had deducted a certain amount being 10% of the total bill amount as retention money. The Defendants have paid the bills raised from time to time. However, for various reasons the Defendants did not pay the amount which was termed as retention money. According to the Plaintiffs the final bill has also not been settled by the Defendants. Hence, the present Suit is filed. Parties herein have exchange affidavits and raised the various points. 2. The record clearly shows that while making payments to the Plaintiffs, the Defendants were authorized to withhold the particular amount equivalent to 10% as and by way of retention money. The very fact that the certain amount was required to be reserved as retention money would clearly show that it is only when the Defendants have arrived at a conclusion that the work is carried out to the satisfaction of the Defendants and in accordance with the terms of the contract the monies which are not paid as and by way of retention money can be paid. 3 3. It is noticed that the Plaintiffs had by their notice dated 3rd October 2007 demanded the payment of various bills and in particular, amount covered by the retention money and the final bills. The Defendants have by their reply dated 7th December 2007 indicated that the Plaintiffs have not carried out the work as per the terms of the contract and to the satisfaction of the Defendants. 4. After having gone through the record, it is clear that the Defendants have raised reasonable points to show that the Plaintiffs have not complied with their contractual obligations and as a result of this, the facts have resulted into a bona-fide dispute between the parties to the Suit. 5. On record there is nothing specifically admitted by the Defendants as regards the liability to pay the amounts covered by the retention money or the final bill. Reading of the record shows that there is a dispute raised by the Defendants as regards the quality of the work as well as accounts. If this be so, the Defendants have been able to put up their defence by which they can be permitted to defend 4 the Suit without putting them to terms as regards deposit of money. To that extent, the Defendants are entitled to unconditional leave to defend. Hence, following order is passed to dispose of the Summons for Judgment :- (i) The Defendants are granted unconditional leave to defend the Suit. (ii) It appears that there was some misunderstanding at the stage at which the Suit is pending and in past the formal written statement has been filed by the Defendants and the same is on record. In view of this, the Suit will have to be posted for issues. (iii) The Suit is adjourned to 23rd August 2010 for issues. (iv) The Summons for Judgment is disposed of in the above terms with no order as to costs. (R.Y. GANOO, J.)