*1* sj.505.09.ss.2463.09.1017.sxw kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.505 OF 2009 IN SUMMARY SUIT NO.2463 OF 2009 Jinesh J. Doshi. ..Plaintiff -versus- Zenith Fire Services (India) Pvt.Ltd.. ..Defendant ............ Mr.D.M.Joshi, for the Plaintiff. Mr.Bipin Joshi, for the Defendant. ............ CORAM : S.C.DHARMADHIKARI, J. Date : 14th November, 2011. P.C.: 1 This Summary Suit is filed on the basis of the written contract whereunder the Plaintiff was entrusted the construction work by the Defendant. It is stated that the work was measured and after measurement jointly carried out, the bills were raised. Once bills were forwarded, no dispute has been raised with regard to the quality of work measured and carried out, then, the amount under running bills stands confirmed and that should have been remitted. This is a case of admitted liability, therefore, Order XXXVII of the Code of Civil Procedure, 1908 has been rightly invoked. Reliance is placed upon Annexure-A, running bills and communication of the Defendant, copy of which is at page 40 of the paper book. 2 On the other hand, it is stated that the Defendants have already paid heavy sums and the amount has been now withheld on account of several breaches which have been committed and as noted in *2* sj.505.09.ss.2463.09.1017.sxw the communication at page 40. Therefore, this is not a case of admitted liability, but the dispute is raised with regard to the quality of work, therefore, the amount under the running bills is not payable. 3 After having heard the learned counsel appearing for the parties and perusing with their assistance the plaint and annexures thereto, so also, the affidavits on record, there is substance in the contention of the Defendants that the communication at page 40 has to be read in its entirety. Once it is read in its entirety, it is clear that there is dispute raised with regard to the quality of work. The payment has been referred and it is stated that Rs.25 lacs have been paid, but rest of the amount is not payable and there is in fact counter claim. 4 To my mind, under the construction contract when the bills were forwarded and the measurement, as also, quality of work is disputed, then, triable issues arise for determination and consideration. This is not a case of the amount payable under the undisputed bills. For all these reasons, there will be unconditional leave to defend. The suit is transferred to the list of commercial causes. The Written Statement be filed within 12 weeks from today. Discovery and inspection also be completed within this period. The Summons for Judgment is, accordingly, disposed of. No costs. (S.C. Dharmadhikari, J)