1 sj31.10.sxw ssm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 31 OF 2010 IN SUMMARY SUIT NO. 2638 OF 2009 M/s. Aryamman Construction Pvt. Ltd. havint its office at - Unit No.2, Shiv Dham, R.K. Mission Marg, 16th Road Corner, Santarcuz (West), Mumbai – 400 054 ......Plaintiffs. Vs. M/s. Kanaka Infratech Limited, having office at Mangalya, ‘C’ Wing, 5th Floor, Marol Maroshi Road, Andheri (East), Mumbai- 400 059. ......Defendants. Mr. Rakesh Kumar with Soni Kumar i/by M/s. Legal Vision for the Plaintiffs. Mr. A.R. Bamne i/by M/s. A.R. Bamne & Co. for the Defendants. CORAM :- ANOOP V. MOHTA, J. RESERVED ON :- 23 SEPTEMBER 2011 PRONOUNCED ON :- 7 OCTOBER 2011. P.C.:- 2 sj31.10.sxw ssm The Plaintiffs are a Private Limited Company having business of Civil Construction and so also the business of the Defendants. After negotiations the work order dated 8 December 2006 was issued with certain terms and conditions. The relevant clauses of the payments are as under- “Revised Payment Terms:- 1. Advance @ 10% shall be paid against work order. You have to submit with us PDC of equivalent amount drawn from any Nationalized Bank as a security. 2. 80% payment against submission of R.A. Bills after certification by Mr. Chauhan of M/s. Master & Associates immediately. 3. 10% Retention, 5% to be released on virtual completion of work and balance 5% to be released against Bank Guarantee for period of six months only.” 2 The present Summary Suit filed on 1 September 2009 by the Plaintiffs for a sum of `25,64,877/- with further interest @ 18% p.a. on the said amount. As alleged, the Defendants failed to make the payment as per the RA Bills though work was completed by the Plaintiffs. The Defendants filed Vakalatnama on 17 November 2009. The Plaintiffs have taken out the Summons for Judgment on 19 January 2010. The same was replied on 20 July 2011 by the 3 sj31.10.sxw ssm Defendants. A rejoinder is also filed by the Plaintiffs on 4 August 2011. 3 Heard both the parties, gone through the pleadings as well as the documents so referred. Admittedly, the dispute is based upon the non-payment of the various bills raised by the Plaintiffs. Though there is no serious dispute that the Plaintiffs have completed the work as per the above payment conditions, it was obligatory for the Plaintiffs to get the bills certified from M/s. Master and Associates, the Architect/ Consultant of M/s. Rolta India Limited. The Plaintiffs were appointed by the Defendants who entered into the main contract with M/s. Rolta India Ltd. to complete the work. The Plaintiffs had no direct contract with M/s. Rolta India Ltd. The Plaintiffs agreed to complete the work on payment of conditions as recorded above, therefore, they are bound by these conditions, whereby it was agreed that 80% payment against the submission of RA Bills shall only be after the certification of Mr. Chauhan of M/s. Master and Associates, Architects immediately. There is no material on record to justify and/or to support that such certificate was obtained by the Plaintiffs. The payment terms are uncleared to the effect that who is under obligation to get the certificate, the Defendants or the Plaintiffs. As 4 sj31.10.sxw ssm averred and replied the Defendants did make substantial payment for the work done. 4 The balance definitely remained for want of certificate. This payment terms if accepted as it is, the Defendants were not under obligation to make the payment of 80% without certification. Though there are various correspondences between the parties as referred and relied and though there was no specific denial to the work done by the Plaintiffs and also to the fact that the M/s. Rolta India Ltd. made substantial payment to the Defendants, yet these correspondences do reflects that the Defendants from time to time insisted to have a relevant certification which was admittedly not part of the record. The contention of the learned counsel appearing for the Plaintiffs based upon the material available on record that having once received the substantial payment from M/s. Rolta India Limited, the Defendants ought not to have retained the balance amount as per the demand notices. The Plaintiffs as recorded have sent as much as more than 50 reminders for the said balance amount. The Defendants resisted by various replies. Their negotiations fail. It is difficult to accept the case of the Plaintiffs that though amount is crystalized due and payable, the Defendants have failed to make the payment 5 sj31.10.sxw ssm therefore, this Suit as filed and the Summons for Judgment so pressed is liable to be granted at this stage. 5 In view of the above case itself and basically the payment terms and conditions referred above, without going further into the correspondences so raised and also the issues which requires detailed inquiry and trial, I am convinced that the Plaintiffs have not made out the case to grant Summons for Judgment as prayed. 6 In view of above facts and circumstances, the Judgments so cited by the Plaintiffs are of no assistance to grant Summons for Judgment as prayed. The defence so raised is bonafide and genuine. The debatable issues are raised. 7 Resultantly, the Summons for Judgment is disposed of. There shall be no order as to costs. 8 The Suit is expedited. The Defendants to file written statement within 30 days. The parties are at liberty to settle the matter. (ANOOP V. MOHTA, J.)