1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.34 OF 2008 IN SUMMARY SUIT NO. 2651 OF 2007 Suryapratap Rajman Chaudhari ...Plaintiff Vs. Shailesh Hemant Vaidya & Anr. ...Defendants None for Plaintiff Mr. Ketan Chotani with Mr. N.M.Shah for Defendants CORAM: SMT.ROSHAN DALVI, J. DATED: 20 TH FEBRUARY , 2009 P.C. 1. The Suit is filed upon the amount admitted by the Defendants as payable to the Plaintiff in writing in a statement of the Defendant No.1 made before the relevant Police Officer in a criminal complaint filed by the Plaintiff. The Defendant No.1 is the Agent of Defendant No.2 in respect of certain construction work on the premises of the Defendant No.2. The Plaintiff is the Sub- Agent appointed by the Defendant No.1 to carry out a part of the work of Defendant No.1. 2 2. Upon the case of the Plaintiff that certain amounts were payable for the construction work done by the Plaintiff upon the bills drawn by the Plaintiff and remaining unpaid, a criminal complaint came to be filed by the Plaintiff. During investigation of the criminal complaint, statement of the Defendant No.1 came to be inter alia recorded. 3. In the last 2 paragraphs of the statement of Defendant No.1, he has stated that the Plaintiff has not carried out the work as per the instructions of the Defendant. The quality of the Plaintiff's work is not good. The Plaintiff completed the work in 2004, but all the work done by the Plaintiff was not as per the instructions of Defendant No.1. From the work carried out by the Plaintiff, according to Defendant No.1 a sum of Rs.2,22,000/- was payable. Yet the Plaintiff demanded Rs.8,42,000/- for the amount of work completed until that date (the date of the statement). The Defendant No.1 was agreeable to pay Rs.2,22,000 /- to the Plaintiff for the work done as per his instructions. The Defendant No.1 had received Rs.20,00,000 /- from Defendant No.2 for the construction work. 4. The Defendant No.1 claims that the admission to pay the amount was conditional upon the Plaintiff completing the work to the satisfaction of Defendant No.1. A reading of the 2 3 paragraphs together does not show that the penultimate paragraph shows that though the work was completed in 2004, all the work was not as per the instructions of Defendant No.1 and the last paragraph thereafter shows that from the work completed according to Defendant No.1 Rs.2,22,000 /- was payable, though the demand was for Rs.8,42,000 /- . Consequently then the amount payable is for the work already done as per the instructions of Defendant No.1 and a liquidated amount is admittedly payable out of the amount claimed, it cannot be taken to be admitted to be payable only if further work was done to the satisfaction of the Defendant No.1. If further work was done, it would have to be seen whether any part of the further amount claimed would be payable. 5. The Defendant No.1 has relied upon a letter of his Architect addressed to him showing certain defects in the work done by the Plaintiff. That letter would have to be proved by the Defendant No.1 through the Architect. In any event that letter would show that part of the work not done as per the instructions of the Defendant No.1. 6. The statement of Defendant No. 1 is recorded in about April 2005 after the complaint was filed in about April 2005. The letter Exhibit1 to the affidavit in reply is dated 24th 4 October 2004, about 6 months prior to the date of the statement. Hence, it can be safely taken that after taking into consideration the various defects which are mentioned in the Architect's letter, Defendant No.1 made a statement of the amount payable by him to the Plaintiff before the Police Officer. 7. It may be noted that the fact that Plaintiff has to carry out the work is not denied. The Plaintiff is stated to be the sub- agent of Defendant No.2 appointed by Defendant No.1. Hence, for the work done, the Plaintiff would be entitled to the payment upon a contract at least under Section 70 of the Indian Contract Act, since the Defendant No.2 would ultimately enjoy the benefit of the work of the Plaintiff not intended to be done gratuitously. 8. Only a small portion of the Plaintiff's bill is admitted by the Defendant No.1, who appointed the Plaintiff to carry out the portion of the construction work. The admitted amount is, therefore, payable by Defendant No.1 as claimed by the Plaintiff. 9. Even a judgment on admission under Order XII Rule 6 of the C.P.C can be passed upon such an admitted amount. However, in view of the fact that the quality of the Plaintiff's 5 work is stated to be defective, this admitted amount must be ordered to be deposited in Court to be secured for the Plaintiff, pending adjudication of the dispute between the parties. 10. Hence, the following order: O R D E R 1. The Defendant No.1 shall deposit Rs.2,22,000 /- in Court within 8 weeks from today. 2. The Defendant No.1 shall be entitled to file his written statement after the amount is deposited. 3. The Written Statement shall be filed within 30 days of the deposit made. 4. The Suit as well as Summons for Judgment are pressed only against Defendant No.1. Hence, the Suit shall be placed on board for framing issues after the written statement of Defendant No.1 is filed. 5. The Summons for Judgment disposed of accordingly. 6 (SMT. ROSHAN DALVI, J.)