1 sj405-09.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.405 OF 2009 IN SUMMARY SUIT NO.1393 OF 2009 Maharashtra State Road Development Corporation .. Plaintiff Versus M/s.Mehra & Co. & Ors. .. Defendants Mr.V.C.Ghosalkar for plaintiff CORAM : S.C.DHARMADHIKARI, J. DATE : 9th November 2011. P.C.: 1] Having heard Mr.Ghosalkar appearing for plaintiff and perusing with his assistance the plaint and annexures thereto, I am of the opinion that the claim of the plaintiff is not tenable under Order XXXVII of Civil Procedure Code, 1908. The defendant was appointed as a contractor to collect Toll on behalf of plaintiff. Upfront money was already provided but the grievance is that the same was provided for only certain period. The contractor continued collection of Toll thereafter for five days but he did not make payment as per the agreed rate. The response of the contractor appears to be that he could not collect toll in terms of the calculations made by him. He, therefore, intimated on 26th February 2006 to the plaintiffs that he was not finding it profitable but in fact incurring a loss. He, therefore, intimated that he is not interested in collecting toll. He stated that he would be able to pay only Rs.95,000/- on daily basis till further arrangement are 2 sj405-09.doc made and no further claim beyond this sum will be entertained. Response to this letter by the plaintiff was that the contractor should recoup the balance instalments till 27th February 2006. The payment is made only till 24th January 2006. Thus, although, the contractor is stated to have abandoned the contract before the contractual period came to an end, the plaintiffs' case is that he was still liable to pay till the contractual period or atleast he was liable to pay the same till he collected toll after his letter. 2] The claim appears to be on the basis of the computation done by the plaintiffs. It is nothing but a claim for losses which have been incurred because of the abrupt and early termination of the contract. To my mind, a reading of the contractual terms, conditions and the correspondence, this is a case where the plaintiffs will have to prove their claim by leading oral and documentary evidence. The defendant is, therefore, entitled to unconditional leave to defend. The suit is transferred to the list of commercial causes. Defendant to file written statement within a period of 12 (twelve) weeks from today. Discovery and inspection to be completed within that period. (S.C.DHARMADHIKARI, J)