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Judgment
Anoop V. Mohta, J.—Plaintiff has taken out the Summons for Judgment in Summary Suit based upon a licence agreement dated 16 April, 2006 (the agreement) whereby the defendants were permitted on the building owned by the plaintiff, to install a Cellular Antenna for three years minimum. The agreement was for the period commencing from 1 January, 2006 upto 31 January, 2008. The fixed licence fee of 4,88,750/- per year payable on or before 15 January of every year. It was paid for two years accordingly. There were renewal as well as termination clauses in the agreement.
An Assistant Commissioner of Municipal Corporation under the Mumbai Municipal Corporation Act on the basis of the complaint received from the tenants of the building issued a specific notice to the defendants and directed to remove an erected cabin and the Antenna. The Antenna was demolished on 6 September, 2007 by the Corporation. That resulted into termination/cancellation of the agreement in advance. The defendants, therefore, by notice dated 7 September, 2007, even demanded the refund of the licence fee which was paid in advance for the remaining period with effect from 7 September, 2007 to 31 December, 2007 since they-''were unable to operate their cell site from the building in question.
The agreement nowhere provides that the irrespective of breach of termination of contract, the plaintiff is entitled to claim the balance amount/'' licence fee in advance till December, 2008. The usual clause of termination, in fact permits the parties to terminate the contract after due notice. Therefore, in the present case, the circumstances so referred above, compelled the parties to terminate the contract. Such situation was not specifically contemplated and/or dealt with in the agreement. The plaintiffs entitlement of update licence up to December, 2008 in spite of above circumstances, therefore, just cannot be accepted as a foundation to grant Summons for Judgment as prayed, though there is a written agreement between the parties in question. It all depends upon contents, nature and purpose of such agreement. Who has committed the breach of clauses of the agreement and the consequences of the same including the damages/compensation if any, is again a matter of trial and just cannot be considered merely on the basis of affidavit filed by the parties.
The basic burden lies upon the plaintiff to prove and satisfy the Court that the claim so raised and prayed for decree falls within the ambit and scope of the summary procedure in question. Once the Court comes to a conclusion that plaintiff has made out a case for Summons for Judgment or the defendant has made out a case for unconditional or conditional leave, after considering the facts and circumstances of the case, need to exercise discretion in either way based upon the settled position of law. The relevant ingredients as contemplated for granting Summons for Judgment in this case are missing. There was no binding and acknowledged claim.
In view of above principles, though there is a written agreement/ contract between the parties, but in view of specific denial of the liabilities, as well as, the entitlement and for want of specific clause or agreement/acknowledgment by the defendants, entitling him balance licence fee irrespective of the pre-termination of the contract, nowhere falls within the ambit for the purpose to grant the Summons for Judgment, as prayed.
On the contrary, the defence so raised by the defendants cannot be stated to be sham and bogus. In my view, it is clear that a case is made out for grant of leave to defend the Suit unconditionally.
Therefore, unconditional leave is granted. The defendants to file written statement within 30 days. The Suit be transferred to Commercial Cause. The Summons for Judgment is accordingly disposed of. The Suit is expedited. No costs.