Case Note & Summary
The plaintiff, Sai Om Petro Specialities Ltd., a builder/promoter, filed a summary suit against the defendant, M Industries through its proprietor Mr. Pinto, for recovery of alleged maintenance charges based on bills raised from time to time under an agreement for sale dated 31 August 2004. The agreement was executed under the Maharashtra Ownership Flats Act, 1963 (MOFA) for the sale of an industrial gala in an industrial estate at Bhandup, Mumbai. The plaintiff claimed that the defendant, as purchaser, was obligated under Clause 12 of the agreement to pay a provisional monthly contribution of Rs.2083/- towards outgoings until a society was formed and conveyance executed. The plaintiff also took out a Summons for Judgment under Order 37 of the Code of Civil Procedure, 1908. The defendant was served but did not file any reply to the Summons for Judgment. The court noted that the plaintiff's case revolved around the agreement, which was duly stamped and registered. The court observed that the defendant had not raised any triable issues or sought leave to defend. Consequently, the court allowed the Summons for Judgment and decreed the suit in favour of the plaintiff for the amount claimed with interest at 9% per annum from the date of filing of the suit until realization, along with costs.
Headnote
A) Civil Procedure - Summary Suit - Order 37 CPC - Summons for Judgment - Unconditional Leave to Defend - Where defendant fails to file reply to Summons for Judgment, court may pass judgment in favour of plaintiff if claim is based on written contract and no triable issues raised - Held that defendant's failure to respond amounts to no defence, and plaintiff is entitled to decree as prayed (Paras 1-5). B) Maharashtra Ownership Flats Act, 1963 - Agreement for Sale - Clause 12 - Proportionate Outgoings - Maintenance Charges - Builder/Promoter entitled to recover provisional monthly contribution from purchaser until society is formed and conveyance executed - Held that clause 12 obligates purchaser to pay proportionate share of outgoings as determined, and provisional monthly contribution of Rs.2083/- per month is payable (Paras 2-4). C) Contract - Interpretation - Agreement for Sale - Obligation to Pay - The purchaser's undertaking to pay provisional monthly contribution and such proportionate share of outgoings is a contractual obligation enforceable in summary proceedings - Held that the claim is based on written contract and defendant has no defence (Paras 3-5).
Issue of Consideration
Whether the plaintiff is entitled to a summary judgment for recovery of maintenance charges based on the agreement for sale under the Maharashtra Ownership Flats Act, 1963, when the defendant has not filed any reply to the Summons for Judgment.
Final Decision
Summons for Judgment is allowed. Suit is decreed in favour of the plaintiff for the amount claimed with interest at 9% per annum from the date of filing of the suit until realization, along with costs.
Law Points
- Summary suit
- Summons for Judgment
- Order 37 CPC
- Maharashtra Ownership Flats Act 1963
- Section 4
- Section 6
- Clause 12 agreement
- proportionate outgoings
- maintenance charges
- builder/promoter
- purchaser
- no defence
- unconditional leave to defend
