1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.446 OF 2007 IN SUMMARY SUIT NO.2239 OF 2007 Mohammed K. Attarwala ....Plaintiff V/s. Shrirang K. Sarda ....Defendant Mr.Shamim i/b S. Shamim & Co. for the Plaintiff. Mr.S.S. Kulkarni with Mr.Sachin Chavan for the Defendant. CORAM : S.J. VAZIFDAR, J. DATE : 4TH DECEMBER, 2009. P.C. :- 1. The suit is filed to recover a sum of Rs.21,42,701=25 ps. Together with interest on the principal sum of Rs.14,77,725/- at 18% p.a. from the date of the suit till payment. 2. The claim arises in respect of the work done pursuant to an agreement in writing dated 20.2.2004 entered into between the parties. The work comprises of supplying and erecting spider fittings and glazing work at the Defendant’s shopping mall. The approximate value of the work was stated to be Rs.18,20,000/-. Clause 5 of the agreement pertained to the liquidated damages for noncompletion of work in the time specified at the rate of 1% of the contract value per week of delay subject to a maximum of 5% of the contract value. 3. After completing the work, the Plaintiff raised a final bill dated 2 31.8.2004 in the sum of Rs.19,07,858/-. 4. The Plaintiff admits having received a sum of Rs.4,30,000/- towards part payment on 11.5.2004. The Plaintiff has given credit for the said sum of Rs.4,30,000/-. According to the Defendant, a part payment of Rs.7,50,000/- was made. There is however, no proof for the same. 5. The Defendant having failed to pay the amounts claimed in the final bill, the Plaintiff through his advocate addressed a notice of demand dated 8.1.2007. The Defendant by his letter dated 8.2.2007 merely denied the allegations and stated that the papers had been forwarded to his advocate who would reply to the demand notice in due course. However, no further reply was addressed by the Defendant to the Plaintiff. The suit was filed on 3.7.2007. The Defendant therefore had adequate time to reply to the demand notice dated 8.1.2007. 6. Thus prior to the date of the suit and after the receipt of the final bill, no dispute was raised in respect of the quality of the work or completion thereof within the stipulated period. 7. It was further contended that prior to the final bill, the Defendant had by a letter dated 9.3.2004 informed the contractor for the Defendant’s project that the quality of the Plaintiff’s work was very poor and that to rectify the work would require the Defendant ‘s store being shut down for twenty days. What is important to note is that the Defendant expressly stated that it was would not be possible to do so and he would therefore be forced to accept the job as it was done. No claim was however raised by the Defendant on the Plaintiff in respect of the alleged poor 3 quality of work. 8. The Defendant also relied upon a letter dated 23.7.2004, addressed to the Plaintiff stating that the work was incomplete and that the quality was poor. The Defendant stated that he had no option but to have the work completed by another agency. It is important to note that there is no proof of the Defendant having actually had the work completed subsequently by another agency. The bald averments in the affidavit in reply cannot be accepted. Even assuming that the letter dated 23.7.2004 addressed by the Plaintiff constituted an admission regarding the delay, the Defendant would be entitled on that account to a deduction of 5% of the total contract value. 9. Even on the Defendant’s admission, it is clear that the work has been completed. I will presume that there is a delay in completing the work. The maximum amount that the Defendant would be entitled to for the same would be 5% on the total contract value i.e. a sum of Rs.95,000/-. This is in view of the liquidated damages clause in the contract. 10. Thus though prior to the final bill, there were vague allegations regarding the quality of the work, after the work was completed and after the final bill was forwarded, there were no complaints regarding the quality of the work despite the fact that the Defendant had adequate opportunity to raise his grievance after the demand notice dated 8.1.2007. 11. The defence on the ground of jurisdiction is unfounded. Leave under clause 12 of the Letters Patent has been taken. There is no application for revocation of the leave. Further the contract on the face of it indicates that it was sent by post by the Defendant from Nashik to Mumbai 4 and was accepted in Mumbai. The contract not having been formed by an electronic device, is deemed to have been made where it was accepted. Further there is nothing that belies the Plaintiff’s case that the part payment was made in Mumbai. 12. The Summons for Judgment is therefore disposed of by the following order :- i). Leave to defend granted to the Defendant conditional upon the Defendant depositing in this Court a sum of Rs.15,00,000/- on or before 28.2.2010. ii). In the event the Defendant deposits the aforesaid amount, the suit to stand transferred to the list of Commercial Causes. The Defendant to file a written statement within thirty days. Discovery and inspection within four weeks thereafter. iii). On the said deposit being made, the Prothonotary and Senior Master to invest the same in any nationalized bank initially for a period of two years and thereafter for like periods of two years each. iv). In the event the Defendant fail to deposit the aforesaid amount, liberty to the Plaintiff to apply for further orders. (v). It would be open to the Defendant to furnish a bank guarantee of a nationalized bank in the sum of Rs.15,00,000/- together with interest from the date of the guarantee till its encashment, if any at 10% p.a. The rate of interest is only ad-hoc and shall be subject to the final orders at the hearing of the suit. Summons for Judgment stands disposed of accordingly.