1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.304 OF 2007 IN SUMMARY SUIT NO.1551 OF 2007 ETC Networks Ltd. ..Plaintiffs. Vs. Saregama India Ltd. ..Defendants. Mr.D.Madon, Sr.Counsel with Mr.Anushak Dawar and Ms. Shobha Khavnekar i/by Kadam & Co. for the plaintiffs. Mr. ChetanKapadia and Vishal Mahashwari i/by Khaitan & Co. for the Defendants. CORAM : R.S. MOHITE, J. DATE : 06th July, 2010 PC : 1 This summons for judgment is taken out by the plaintiffs who have filed a suit for decree directing the defendants to pay to the plaintiffs a sum of Rs.6,54,19,244.48ps as on 31.1.2007 together with interest at 18% p.a. from the date of the filing of the suit till realization of the amount as per the particulars of claim being at Exh.H annexed to the plaint. It is the case of the plaintiffs that on 24.6.2003 the plaintiffs entered into an agreement with a company by name M/s. Celebrities Management Private Limited” (hereinafter referred as “Celebrities”) The agreement with the said company was that, on 2 obtaining release order from Celebrities the plaintiffs would release advertisements of certain clients of Celebrities and send bills to those clients directly. It may be mentioned here that the Celebrities are not the defendants to this suit and the agreement dated 24.6.2003 is also not annexed by the plaintiffs to their plaint. 2 The plaint however, reproduced some terms of the agreement dated 24.6.2003. Clause 4 of the said agreement as reproduced in the plaint itself clearly contemplated a tripartite agreement required to be entered between the plaintiffs, Celebrities and the clients of Celebrities as mentioned in Annexure-A to the said agreement. The plaint is silent as to whether any such tripartite agreement was actually entered into. Cause of action for filing a summary suit was not based upon any such tripartite agreement. 3 It is the case of the plaintiffs that on receipt of the release orders from Celebrities they were releasing advertisements and submitting their invoices directly to the defendants. It is their further case that thereafter a telecast certificate was also being issued to the defendants. 4 In para-8 of the plaint, the plaintiffs submit that the suit is based on written contract and it is their case that written 3 contract is by way of release orders, invoices and telecast certiicates. Prima facie, in my view, telecast certificate cannot be the evidence of a written contract as the same is created after the contract is already executed. As far as release orders are concerned, the defendants were not issuing those release orders and admittedly those release orders were being issued by Celebrities. In so far as the invoices are concerned, no doubt invoices have been served upon the defendants and may have been accepted by them but it appears from the clauses of the agreement dated 24.6.2003 between the plaintiffs and the celebrities that this procedure was being followed in pursuance of what was agreed between the plaintiffs and the Celebrities. In so far as payment was concerned, Clause 8 of the said agreement dated 24.6.2003 contemplated that the payments would be made by the clients of Celebrities to Celebrities, who would thereafter become liable to make the payments to the plaintiffs. In this view of the matter, the very existence of the written contract is in doubt. Apart from this, it appears that the claim is made up of certain invoices raised earlier in the year 2001. There is a defect in the claim. In the circumstances, I am inclined to grant unconditional leave to defend the suit. Summons for judgment is therefore, disposed off accordingly and defendants are directed to file their written statement within a period of eight weeks. Both the parties are directed to file their compilation of original 4 documents and to exchange the draft issues within a period of 12 weeks from today. 5 List the suit for directions after 12-weeks. (R.S. MOHITE,J.)