1 sj100-09.sxw pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Summons for Judgment No.100 of 2009 . in Summary Suit No.3348 of 2008 Anil V. Mathrawala .. Plaintiff v/s. Basant Park Co-op. Hsg. Soc. Ltd. & Others ..Defendants Mr.Rohan Cama with Mahesh Londhe i/b. M/s. Sanjay Udeshi & Co.for the Plaintiff. Mr.S.A.Oak i/b. Mahesh Menon & Co. for the Defendant no.1 and 2 to 8 CORAM : R.Y.GANOO, J. DATED : 11th October , 2010 P.C. : 1. Heard learned Counsels on both sides. Plaintiff is a Civil Contractor who had carried out work for defendant no.1 – Co-operative Society. Defendant No.2 is shown as the Repair Committee. Defendant Nos.3 to 8 are the members of the Managing Committee. Since defendant No.1 is the legal person suit will be maintainable against defendant no.1. So far as defendant nos.2 to 8 are concerned, they will be entitled for unconditional leave to defend because they may have acted for and on behalf of the society and they are not personally 2 sj100-09.sxw liable. So far as the liability of defendant no.1 is concerned, defence of the defendant no.1 that there is no written contract cannot be accepted. The correspondence on record and conduct of the defendant no.1 and its members clearly indicates that they wanted the work to be done by plaintiff as set out in the letter at Exhibit A to the plaint. 2. The defendants have come out with a case in their affidavit in reply that they have in all paid to the plaintiffs Rs.12,50,000/-. That is to say, according to the defendant no.1 sum of Rs.92,325/- is paid in excess. Before the Court, except stating that excess payment has been made, Counsel for the defendant no.1 could not explain as to what was the occasion for the defendant no.1. to make payment in excess of the amount of the contract. Defendant no.1 have not given particulars of payment to the tune of Rs.12,50,000/-. As a result of this, the stand of the defendant no.1 that Rs.12,50,000/- was paid cannot be accepted. It is just difficult to accept the stand of defendant no.1 that they would make excess payment to a Civil Contractor. According to them the work is not carried out to the satisfaction of the members of defendant No.1. The defence taken by the defendant 3 sj100-09.sxw no.1 cannot be accepted. The defendant No.1 will have to be put to terms to defend the suit, by directing them to deposit the amount of plaintiffs claim as regards the principal amount of Rs.4,07,000/-. Hence following order is passed to dispose of the Summons for Judgment. ORDER i) Upon defendant no.1 depositing the sum of Rs.4,07,235/- in this Court on or before 21.12.2010, the defendant no.1 is granted leave to defend. ii) Unconditional leave to defend is granted to defendant nos.2 to 8. Defendants to file the written statement directly in the office on or before 11.01.2011. Defendants to supply copy of the written statement to advocate for the plaintiffs within 10 days from filing of the written statement in the office. iii) Summons for Judgment stands disposed of in above terms with no order as to costs. [R.Y.GANOO, J.]