1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.106 OF 2008 IN SUMMARY SUIT NO.392 OF 2008 M/s.Orangefish Entertainment Private Ltd. .... Plaintiff V/s. N/s.Times Innovative Media Private Ltd. .... Defendant Mr.Ajay Sethi, for the plaintiff. Mr.Birendra Saraf with Ms.Priya Aggarwal i/by M/s.Halai & Co., for the defendant. CORAM : D.G.KARNIK, J. DATED : 31ST MARCH, 2009. P.C. 1. Heard the learned counsel for the parties. 2. Learned counsel for the defendant tenders affidavit-in-reply. Learned counsel for the plaintiff objects to the taking of the affidavit-in-reply on record on the ground that the same has been filed after one year of the service of summons for judgment. He submits that no application for leave to defend the suit has been filed within 10 days of service and also no affidavit-in-reply has been filed within the specified period of 10 days. Be that as it may, I have heard the learned counsel for the parties as the defendant has appeared in the matter and have also considered oral submissions made by the learned counsel for the defendant. 2 3. This Summons for Judgment arises out of the suit filed by the plaintiff for recovery of principal sum of Rs.8,64,878 and interest due thereon. Written agreement was executed between the plaintiff and defendant on 22-01-2007 under which the defendant required the plaintiff to design and execute the decor and sets for an event (Birth-day Party) which was to be organized at Jor Baug, New Delhi on January 26, 2007. The agreement refers to the work to be done which were mentioned at annexure 1 and the services to be provided, which are mentioned in annexure 2 to the agreement. Under the agreement, the plaintiff had proposed that the defendant would pay an advance of Rs.10,00,000/-. However, the defendant agreed to pay advance of Rs.7,00,000/- and amended to that effect has been made in the agreement by hand and signed by both the parties. The estimated expenditure (Exh.B to the plaint) was also prepared and was signed by both the parties. The total estimate of expenses for the event was for Rs.16,44,877/-, out of which an advance of Rs.7,00,000/- was paid by the defendant to the plaintiff. 4. The event was organized. The contract was performed by the plaintiff, and the final bill was sent by the plaintiff for payment ( Exh.C to the plaint). The total bill came to Rs.15,64,878/-, which is less than the estimate approved by the defendant. After deducting the advance of Rs.7,00,000/-, the balance to be paid was Rs.8,64,878/-. As the bill 3 amount was not paid, the plaintiff sent a letter dated May 31, 2007 demanding payment with interest. By reply dated 12-06-2007 (Exh.E to the plaint), the defendant admitted receipt and also stated that the defendant was reviewing the bill and would get back to the plaintiff by July 15, 2007. As the defendant did not respondent, the plaintiff sent a final notice dated 18th July, 2007 demanding the payment and also pointing out that the failure to make the payment, would leave plaintiff with no option but to take legal action. No reply was sent to this. 5. The fact that the event has been organized and the contract has been performed by the plaintiff has not been denied. The defendant has also not denied that the bill was sent by the plaintiff and received by the defendant. The correspondence referred to above, has also not been denied by the defendant. 6. Learned counsel for the defendant, however, raised a technical objection to the maintainability of the suit as a Summary Suit. He submitted that the provisions of Rule 2 of Order 37 of C.P.C., have not been complied with in as much as the plaint does not contain specific averment that the suit was filed under Order 37 of C.P.C. A perusal of the title to the plaint shows that after the suit number the plaintiff has specifically scribed “Under Order 37 of the C.P.C.” In para 10 of the plaint, the plaintiff has averred that suit has been filed under Order 37 of the 4 C.P.C. The objection has no merit. 7. The learned counsel for the defendant submitted that there was no agreement to pay interest and as the plaintiff had claimed interest the suit was not maintainable. Perusal of the Exh.B, clearly shows that the interest was to be charged at the rate of 2.5% p.m. The learned counsel for the defendant further submitted that Exh.B was not a part of the written contract and therefore, it cannot be said that there is a written contract to pay interest. This invoice (Exh.B) bears the seal and stamp of the defendant. The defendant by signing and sealing the invoice accepted this term payment of interest as a term of the contract and that too in writing. In my view, therefore, there is no merit in the contention that there was no written contract for payment of the interest. 8. Lastly, the defendant submitted that the plaint does not specifically state as required by Order 37 Rule 2 of C.P.C., that no relief other than that covered has been prayed and therefore, the suit cannot be treated as a Summary Suit. In my view, the submission is misconceived. Para No.10 of the plaint specifically states that the suit was filed under Order 37 of the C.P.C. and also that no relief falling outside the ambit of Rule 2 has been claimed. The submission therefore, is factually incorrect and deserves to be rejected. 9. No other point was argued. 5 10. In this view of the matter, the defendant is not entitled to leave to defend the suit. However, by way of concession, I am inclined to grant conditional leave to the defendant to defend the suit. The defendant is granted conditional leave to defend the suit subject to the condition that it deposits in this Court a sum of Rs.10,31,869/- within eight weeks from today. On such deposit, the plaintiff shall be permitted to withdraw the said sum by furnishing security to the satisfaction of the Prothonotary and Senior Master. On deposit of the money, the defendant shall file written statement within a period of 12 weeks from today. ( D.G.KARNIK, J. )