1 SJ259.03.sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 259 OF 2003 IN SUMMARY SUIT NO. 332 OF 2003 Esteem Projects Pvt. Ltd. ... Plaintiffs. V/s. International Thermal Technology- Kirchner Italia Branch S.P.A. ... Defendants. Mr. Cyrus Ardeshir with S.V. Uttam i/b. Pardiwala & Co. for the Plaintiffs. Mr. S.L. Shah for the Defendants. CORAM : R.Y. GANOO, J. DATED : 04th OCTOBER 2010. P.C. :- Heard learned Counsel on both sides. On the last occasion i.e. on 15th September 2010, the Defendants were granted time to file affidavit in reply today directly in the Court and the Defendants were directed to pay costs of Rs. 20,000/- as cost condition precedent. Learned Counsel for the Plaintiffs informed the Court that the Defendants have not paid costs to the Defendants. The Defendants wanted to file reply today. Since filing of reply was subject to payment of costs, affidavit in reply is not taken on record. The Summons for Judgment proceeded without there being an affidavit in reply. 2 SJ259.03.sxw 2. I have heard learned Counsels on both sides. The Plaintiffs were to provide package to the Defendants and install the same at site. The Plaintiffs raised an invoice dated 21st December 1999 for Rs.88,98,012/- and according to the Plaintiffs, the sum of Rs.50,00,000/- was paid prior to raising of the invoice and balance amount recoverable was Rs. 38,98,012/- for which the present Suit has been filed alongwith the interest as set out in the particulars of the claim. The plaint is filed on 18.12.2002. 3. Learned Counsel for the Plaintiffs submitted that the Defendants had not objected to the quality of the work or other particulars regarding the fulfillment of the terms of the contract by the Plaintiffs and it is only in October 2000, the Defendants have raised certain disputes as regards the work carried out by writing letter dated 26th October 2000 at Exhibit ‘K’ to the plaint. According to the Plaintiffs, the Defendants have no defence and therefore, the Summons for Judgment should be made absolute. 4. I have perused the correspondence on record and in the joint meeting held on 29th July 1999 between the representatives of the parties, it was observed that the Plaintiffs have carried out work to the general satisfaction of the Defendants and there are no major discrepancies. The clause 2 of the minutes recorded in the joint meeting no doubt says that certain minor points remained to be attended to. It is exactly this point has been picked up by the Defendants in 3 SJ259.03.sxw their letter dated 26th October 2000. 5. After having considered the facts in question, I am inclined to observe that in order to defend the Suit , the Defendants will have to be put to terms to deposit the entire amount which has been demanded by the Plaintiffs as and by way of a principal amount. The question of interest will have to be left to trial as the Plaintiffs are demanding interest at the rate of 18% per annum, though such a term of interest is not mentioned in the invoice. 6. In view of the above, following order is passed to dispose of the Summons for Judgment :- (i) Upon the Defendants depositing in this Court a sum of Rs.38,98,012/-, the Defendants are permitted to defend the Suit. (ii) The Defendants to deposit this amount in this Court on or before 23rd December 2010 . (iii) The Defendants to file written statement directly in the Office on 12th January 2011. At the time of filing written statement, the Defendants shall produce proof for having deposited the amount. (iv) The Defendants shall serve a copy of the written statement upon the Advocate for the Plaintiffs. 4 SJ259.03.sxw (v) If the amount of Rs.38,98,012/- is deposited in the office, the Prothonotary and Senior Master to invest the same in a Nationalized Bank initially for a period of 2 years and continue to renew the same for like period till further orders. (vi) There shall be no order as to costs. 7. The compilation of documents tendered by the learned Counsel for the Plaintiffs is returned to the Plaintiffs. (R.Y. GANOO, J.)