1 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Summons for Judgment No.368 of 2009 IN Summary Suit No.3202 of 2005 Zee Entertainment Enterprises Ltd. ... Plaintiff v/s. Creative TV Link Pvt. Ltd. & ors. ... Defendants Mr.Sharan Jagtiani with Mr.Dhiraj Mhatre i/by Anil Agarwal for Plff. Mr.Anshok Davar with Mr.K.R. Shekhawa for Deft.No.1. ----- CORAM : SMT.ROSHAN DALVI, J. DATED : 13th April, 2010 P.C. : 1. This Suit is filed upon the 5 written contracts between the Plaintiff and the 1st Defendant evidenced by the Release Orders of the 1st Defendant and the Plaintiff s invoices in respect of the television transmission of certain advertisements of the customer of the 1st Defendant who is the 2nd Defendant. The contract, however, is between the Plaintiff and the 1st Defendant. 2. Each of these Release orders is for the product Spotnil Cream of the 2 nd Defendant. The first 2 Release Order is for its advertisement in the programme Manasi on 6 th, 7th, 8th and 9th August 2002 at the rate of Rs.5,000/- which is specified in the Release Order itself. The invoice of the Plaintiff is for the transmission of the aforesaid days for the price agreed between the parties. 3. The second Release Order is dated 30.7.2002 for the advertisement in the programme Train to Pakisthan on 15th August, 18th August and 25th August 2002. Each of these is at the rate of Rs.5,000/- per programme and the Release Order is for the consolidated amount mentioned in the Release Order itself. The Plaintiff s invoice is for the equivalent amount of the television transmissions of those days. 4. The third Release order also dated 3.7.2002 is for the television transmission to the programme Ek Akasher Niche on 5 th, 6th, 7th, 8th and 9th of August 2002 for Rs.10,000/-. The Plaintiff s invoice dated 14.8.2002 is only for the transmission on 5th and 6th August 2002 for the said amount. 5. The fourth Release Order also dated 3.7.2002 is for transmission of the programme Manasi on 5 th August 2002 for Rs.5,000/- and the Plaintiff s invoice is for transmission of the said amount. 3 6. The fifth Release Order also dated 3.7.2002 is also for the transmission in the programme Manasi for 12th to 30th August 2002, excluding 17th, 24th and 25th August 2002 for Rs.5,000/- per spot. The Plaintiff s invoices dated 14 th August 2002 and 31st August 2002 are for the transmissions on those days for the said amount. 7. The Plaintiff has shown 5 separate independent contracts and filed the Summary Suit in respect of those 5 written contracts. 8. The Plaintiff has issued the notice of demand prior to the filing of the Suit on 26.11.2003. The 1st Defendant has replied to the notice of demand on 8.12.2003 stating that the 2nd Defendant had issued post-dated cheques which had been dishonoured and they were in the process of recovering the amount from the 2nd Defendant. 9. The reply to the notice of demand has raised no defence on merits. 10. In the Summons for Judgment, it is the case of the 1st Defendant that it does not admit the genuineness of the Release Orders until it takes inspection. 4 11. The Release Orders have been received by Fax. Consequently, copies of the Fax have been produced along with the copies of the Plaintiff s invoices. The first Release Order is signed by one Sumit Pathak, the authorised signatory of the 1st Defendant. The other 4 Release Orders are similarly signed by the same authorised signatory. The defence taken for the first time in the Summons for Judgment is, therefore, not bona fide. 12. The Defendants have also raised the defence of quality of the service of transmission on the television. That is shown in the letter of Sumit Pathak on behalf of the 1st Defendant dated 25.6.2002 relating to the transmissions made prior to that date. The suit contracts are for the later period. It can be seen that despite the quality being poor alleged by the 1st Defendant, it placed further Release Orders. The Suit is filed with regard to those Release Orders and the notice of demand is served upon the Defendants. The defence of the sub- standard quality of transmission is not for the suit release orders. The suit contracts are not denied. 13. The Plaintiff has sued in 2000. This Summons for Judgment is taken out in 2009. It is, therefore, 5 contended that since it is delayed by 6 months after the filing of the Suit, unconditional leave should be granted. 14. There is no provision of law either in the Civil Procedure Code (CPC) or in the rules which is shown to Court setting down the limitation period for filing the Summons for Judgment. That cannot be. The Summons for Judgment is filed only after the Defendant enters appearance. The Summons for Judgment is essentially a special remedy allowed in civil suits which are based only on negotiable instruments, on a guarantee or upon a written contract. The Summons for Judgment requires the Court to accept the documents of the Plaintiff and to see the defence, if any, to those documents. If the Summons for Judgment is made absolute under Order XXXVII Rule 3 of the CPC, the Plaintiff would not be required to lead direct evidence with regard to the execution of the negotiable instrument, the deed of guarantee or the written contract. It is only in this regard that the Summary Suit requires a special summary procedure. Consequently, mere taking out the Summons for Judgment much after the filing of the suit, cannot deter the Court in considering the defence, if any, on merits. 6 15. In the Division Bench judgment of this Court in the case of Bankay Bihari G. Agrawal vs. M/s.Bhagwanji Meghini & ors., reported in 2001 (2) Bom.C.R. 86, it has been held that delay in taking out the Summons for Judgment beyond the period of 6 months prescribed by Rule 227 also does not automatically entitle the Defendant to unconditional leave to defend the suit. It is, of course, a relevant factor in considering in conjunction with the nature of defence for granting leave to defend the suit. 16. Though the Summons for Judgment is indeed delayed in this case, no defence on merits is shown. 17. The Summons for Judgment is, therefore, made absolute as prayed. 18. The Suit is decreed accordingly. 19. The 5 contracts tendered by the Plaintiff, which are not denied by the Defendants, are taken on record and marked Exhibit-A (collectively). (SMT.ROSHAN DALVI, J.)