Case Note & Summary
The Plaintiff, Nemichand Jain, filed a Summary Suit against M/s. Vodafone Essar Limited and Sandeep Thakur based on a licence agreement dated 16 April 2006. The agreement permitted the Defendants to install a Cellular Antenna on the Plaintiff's building for a minimum period of three years, from 1 January 2006 to 31 January 2008, with a fixed licence fee of Rs. 4,88,750 per year payable on or before 15 January of every year. The fee was paid for two years. The agreement contained renewal and termination clauses. However, an Assistant Commissioner of the Municipal Corporation, acting under the Mumbai Municipal Corporation Act, issued a notice to the Defendants based on a complaint from tenants, directing removal of the cabin and antenna. The antenna was demolished on 6 September 2007. This led to premature termination of the agreement. The Defendants, by notice dated 7 September 2007, demanded a refund of the licence fee paid in advance for the remaining period from 7 September 2007 to 31 December 2007, as they could no longer operate their cell site. The Plaintiff then took out a Summons for Judgment seeking a decree for the balance licence fee up to December 2008. The Court noted that the agreement did not provide that the Plaintiff was entitled to claim the balance licence fee in advance irrespective of breach or termination. The usual termination clause permitted parties to terminate after due notice. The demolition compelled termination, a situation not contemplated in the agreement. The Court held that the Plaintiff's entitlement to the licence fee up to December 2008 could not be accepted as a foundation for summary judgment. The issues of who committed breach and the consequences, including damages, are matters for trial and cannot be decided on affidavits. The basic burden lies on the Plaintiff to show that the claim falls within the summary procedure. The Court concluded that the Plaintiff failed to make out a case for Summons for Judgment, and the Defendants raised triable issues. Accordingly, the Summons for Judgment was dismissed, and the Defendants were granted unconditional leave to defend the suit.
Headnote
A) Civil Procedure - Summary Suit - Summons for Judgment - Order XXXVII CPC - Triable Issue - Plaintiff sought decree for balance licence fee after agreement terminated prematurely due to demolition by Municipal Corporation - Court held that the circumstances of termination, breach, and entitlement to damages are triable issues not suitable for summary judgment - Held that the Plaintiff failed to prove that the claim falls within summary procedure (Paras 3-4). B) Contract Law - Licence Agreement - Termination - Force Majeure - Breach - Agreement for installation of cellular antenna terminated after demolition by Municipal Corporation - No clause covering such situation - Court held that who committed breach and consequences are matters for trial (Para 3).
Issue of Consideration
Whether the Plaintiff is entitled to a decree on Summons for Judgment under Order XXXVII of the Code of Civil Procedure, 1908 for balance licence fee when the agreement was terminated prematurely due to demolition of the antenna by the Municipal Corporation.
Final Decision
Summons for Judgment dismissed. Defendants granted unconditional leave to defend the suit.
Law Points
- Summary suit
- Summons for Judgment
- Triable issue
- Licence agreement
- Breach of contract
- Unliquidated damages
- Order XXXVII CPC
