Judgment : By this Summons for Judgment, the Plaintiff seeks that judgment be entered for the Plaintiff in this suit against the Defendant for a sum of Rs. 1,53,08,942.32 and further future interest on the principal sum of Rs.1,53,08,942.32. The suit is based on the written contract annexed at Ex. ‘E’ to the plaint. 2. In the month of August 2007, the Defendant approached the Plaintiff for the construction of interior, air conditioner, electrical and certain minor exterior works at the Defendant’s property at Kovalam, known as ‘Treasure Cove’ situated at Trivandrum. The Defendant appointed its architects M/s. Niteen Parulekar Architects Pvt. Ltd. who provided the scope of work, drawings and specifications to the Plaintiff. On 21st August, 2007, the Plaintiff submitted its first quotation to the Defendant. The Defendant appointed a structural consultant for the purposes of advising and opining as to various structural works. The Defendant forwarded report/note of the consultant to the Plaintiff. 3. On 11th September, 2007 the Plaintiff submitted revised bill of quantities to the Defendant. On 12th September, 2007 the Plaintiff submitted revised quotation to the Defendant. On 7th October, 2007 the Plaintiff submitted final bill of quantities (BOQ). On 12th September, 2007 Letter of Intent was issued by the Defendant. On 14th December, 2007 Plaintiff submitted final bill of quantities to the Defendant. On 18th February, 2008, the Defendant issued work order in favour of the Plaintiff. The said work order was valued at Rs. 8 Crores excluding Kerala Entry Tax. Clause (1) of the said Work Order provided for the total project cost of Rs.Eight Crores (Rs. Six Crores for interior work and Rs.Two Crores for exterior work) as per final BOQ and confirmatory letter of the Plaintiff dated 14th December, 2007 on turkey basis. Clause (3) provided that the payment shall be made, on a periodic basis on submission of invoice approved and certified by the architect. Clause (5) provided that any item not executed or being directly purchased by the club shall be deducted from the bill. Clause (11) provided that the contractor to indemnify the client from the damages, loss of life, accidents caused by him or his work. Clause (12) provided that the rates are all inclusive and nothing extra shall be paid on any account whatsoever. 4. Clause (11) provided that the contractor to indemnify the client from the damages, loss of life, accidents caused by him or his work. Clause (12) provided that the rates are all inclusive and nothing extra shall be paid on any account whatsoever. 4. According to the Plaintiff, various additional/extra works were ordered which was not included in the work order and were beyond the scope of the price which were ordered by the Defendant in respect of which Defendant agreed to pay separately in addition to the quantum agreed to be paid in the work order. According to the Plaintiff, the approval for costing of the additional/extra items were not sanctioned by the Defendant immediately. The Plaintiff placed reliance on various letters sent by email to the Defendant in this regard. According to the Plaintiff running account bills of the Plaintiff were approved and certified by the architect M/s. Niteen Parulekar Architects Pvt. Ltd. (for short ‘architect’) pursuant to which the Defendant used to make the payment of the certified amount to the Plaintiff. According to the Plaintiff on 2nd December, 2008, the said architect NPAPL issued final certificate certifying amount of Rs.8 crores for work executed, Rs. 88,40,913.32 in respect of the extra works. On 8th December, 2008, the architect certified a sum of Rs.3,03,815/-towards Kerala Entry Tax. According to the Plaintiff, the architect certified a sum of Rs.8,91,44,728.32 out of which an amount of Rs.7,38,35,786/-including taxes is paid by the Defendant leaving a sum of Rs.1,53,08,942.32 due and payable by the Defendant to the Plaintiff. Alongwith forwarding letter dated 26th November, 2008, the Plaintiff submitted a final bill. According to the Plaintiff the work enumerated in the work order as well as the additional work so certified by the architect was duly completed by the Plaintiff. According to the Plaintiff total final bill of the Plaintiff was worked out to Rs.2,14,43,902/-out of which a sum of Rs.1,53,08,942.32 was duly certified by the architect and the said sum is ascertained amount due and payable by the Defendant to the Plaintiff. 5. On 20th January, 2010, the Plaintiff issued a legal notice to the Defendant towards the certified amount of Rs.1,53,08,942.32 as well as for the balance amount of Rs.61,34,959.68. On 12th February, 2010, the Defendant through its advocate replied the notice dated 20th January, 2010 and raised various issues and denied the claim made by the Plaintiff. 5. On 20th January, 2010, the Plaintiff issued a legal notice to the Defendant towards the certified amount of Rs.1,53,08,942.32 as well as for the balance amount of Rs.61,34,959.68. On 12th February, 2010, the Defendant through its advocate replied the notice dated 20th January, 2010 and raised various issues and denied the claim made by the Plaintiff. It is the case of the Plaintiff that the Defendant admitted the fact that the architect was appointed by the Defendant whose role was to verify, approve and certify the works so done by the Plaintiff for the payment thereto by the Defendant. It is also alleged that if architect would have certified the payment of the outstanding amount, the Defendant would have paid the same. 6. On 30th June, 2010, the Plaintiff denied the allegations made by the Defendant in its advocate’s letter dated 12th February, 2010. In the said letter, the Plaintiff restricted its claim to the amount which was duly certified by the architect and reserved its right to claim for the balance subsequently. The Defendant vide its advocate’s letter dated 21st July, 2010 once again denied the claim made by the Plaintiff. The Defendant alleged that the certificates of payment issued by the architect were concocted and fabricated. The Plaintiff by its advocates’ letter dated 6th August, 2010 once again reiterated its claim. According to the Plaintiff, the architect had also issued Interim Certificate of Payment certifying the sum of Rs.31,87,750/-which was retained by the Defendant alongwith a sum of Rs.40,51,986/-. On 30th August, 2010, the Defendant once again denied the claim made by the Plaintiff. On 13th September, 2010, the Plaintiff filed this suit for recovery of Rs.1,53,08,942.32 with further interest on the principal amount of Rs.1,53,08,942.32. 7. The Defendant has filed affidavit in reply raising various issues. The Learned Counsel appearing for the Plaintiff submits as under:- (a) Various payments were made by the Defendant as per the certificate issued by the architect appointed by the Defendant. Final Certificate relied upon by the Plaintiff is also certified by the said architect. Authority of the architect to certify the bill is disputed for the first time in the affidavit in reply. Authority of the architect challenged now by the Defendant is contrary to the work order and is an afterthought. The architect appointed by the Defendant was an agent of the Defendant. (b) Item Nos. Authority of the architect to certify the bill is disputed for the first time in the affidavit in reply. Authority of the architect challenged now by the Defendant is contrary to the work order and is an afterthought. The architect appointed by the Defendant was an agent of the Defendant. (b) Item Nos. 1 and 3 mentioned in the Particulars of Claim are within the scope of contract. (c) Various correspondence relied upon by the Defendant alleging defects in the work carried out by the Plaintiff were between the Defendant and the architect. The Plaintiff is not concerned with such correspondence. No steps are taken by the Defendant against such architect. Defendant could have invoked arbitration clause existing in the contract between the Defendant and the architect. Suit filed by the Defendant for claiming damages against Plaintiff is of no significance. (d) The Plaintiff placed the reliance on the Judgment of the Delhi High Court in case of M/s.Pact India vs. Sh.Sanjiv Bhasin in I.A. NO. 6199 of 1999 and Suit No. 14 of 1999 decided on 9th May, 2001 in support of the plea that architect was an agent of the party who had appointed him once bill is certified by the architect, amount thereunder became payable. It is submitted that final bill which is a written document, prepared by the Plaintiff and on being certified by the architect i.e. the agent of the Defendant will have the character as if the said bill is signed by both the parties, viz. the Plaintiff and the Defendant though his authorised agent, the architect and it would be a written contract acknowledging the debt or liquidated demand in money payable by the Defendant to the Plaintiff. It is submitted that summary suit thus filed by the Plaintiff is covered by Order XXXVII based on such certificate. 8. On the other hand, the Learned Counsel appearing for the Defendant submits as under:- (a) Contract awarded to the Plaintiff was of a total project of Rs.8 crores and was turnkey basis. Clause (4) provided that scope of work is as per the bill of quantity and letter attached to the work order. Clause (8) provided that the billing of the work was inclusive of transport, tools, scaffolding, breakage, wastage etc. and exclusive of Kerala Entry Tax. Clause (4) provided that scope of work is as per the bill of quantity and letter attached to the work order. Clause (8) provided that the billing of the work was inclusive of transport, tools, scaffolding, breakage, wastage etc. and exclusive of Kerala Entry Tax. Under Clause (11), the Plaintiff had agreed to indemnify the Defendant from the damages, loss of life, accidents caused by him or his work. Clause (12) provided that the rates were all inclusive and nothing extra shall be paid on any account whatsoever. Under Clause (13), the Plaintiff had provided 5 years guarantee for water proofing and pest control work carried out by him. (b) The claim made by the Plaintiff in the Summary Suit is also in respect of the alleged extra work which was not under the contract awarded to the Plaintiff. The rates were admittedly not agreed upon between the parties. The Defendant has already paid a sum of Rs.7,38,35,786/-to the Plaintiff. The Plaintiff has claimed to have worked for Rs.8 crores based on certificate of payment dated 2nd December, 2008 which is not conclusive. The architect had no authority to certify any amount over and above Rs.8 crores. The Plaintiff had left the work incomplete and had carried out defective work. (c) Part of the claim made by the Plaintiff is contrary to the Clause (12) of the contract which provides that the rates were all inclusive and no extra amount was payable. (d) The Plaintiff had left the job incomplete in the month of December 2008, there was heavy leakage. The work carried out by the Plaintiff was defective as a result of which the Defendant suffered loss and was required to get the incomplete work done through other agency. The Defendant has already filed a suit for claiming damage against the Plaintiff even before the present suit came to be filed by the Plaintiff and the said suit is pending. The Defendant relied upon various correspondence exchanged between the Defendant and the architect in support of this submission. There was serious grievance about the work carried out by the Plaintiff causing serious damage to the property of the Defendant. The Defendant has disputed the measurement. The Defendant relied upon various correspondence exchanged between the Defendant and the architect in support of this submission. There was serious grievance about the work carried out by the Plaintiff causing serious damage to the property of the Defendant. The Defendant has disputed the measurement. The correspondence between the Defendant and the architect shows that there was collusion between the Plaintiff and the architect and the certificates therefore issued by the architect were not reflecting the correct position on the site and were not conclusive. The Defendant had submitted a list of incomplete work left by the Plaintiff. The claim made for extra work was beyond the scope of the contract. Even the certificate relied upon by the Plaintiff does not certify the exact amount of Rs.8 crores as claimed by the Plaintiff. Summary Suit is therefore not maintainable. 9. In rejoinder, the Learned Counsel appearing for the Plaintiff submitted that allegations made by the Defendant against architect or about his authority is an afterthought. The substantial payment have been made by the Defendant to the Plaintiff as per certificates issued by the said architect. None of the correspondence relied upon by the Defendant exchanged between the architect and the Defendant were forwarded to the Plaintiff. 10. From the perusal of the Particulars of Claim filed by the Plaintiff, it is clear that the Plaintiff has claimed to have carried out by the work in the sum of Rs.8,91,44,728.32 inclusive of Kerala Entry Tax and extra works. From the perusal of the work order issued to the Plaintiff, it is clear that the contract awarded to the Plaintiff was lumpsum contract. The Plaintiff was supposed to carry out the agreed work within the lumpsum amount of Rs.8 crores. Though the architect appears to have certified additional amount alleged to have been carried out, it is common ground that the rates in respect of such extra work was not agreed upon between the parties and such claim is admittedly beyond the scope of the contract. This part of the claim therefore could not be subject matter of this Summary Suit. The correspondence annexed to the plaint indicates that there was a dispute raised by the Defendant in respect of the incomplete work, water proofing work, leakage etc. This part of the claim therefore could not be subject matter of this Summary Suit. The correspondence annexed to the plaint indicates that there was a dispute raised by the Defendant in respect of the incomplete work, water proofing work, leakage etc. The correspondence annexed to the affidavit in reply between the Defendant and the architect also shows that the Defendant had been making grievances in respect of the quality of the work as well as the work not having been completed by the Plaintiff. The table annexed to the reply dated 12th February 2010 by the Defendant through its advocate indicates that there was vast difference in the claim made by the Plaintiff in 4 bills and the amount certified by the architect. It is thus clear that though there was grievance made by the Defendant in respect of the quality of the work carried out by the Plaintiff and/or the same was left incomplete, the said architect has certified the entire work of Rs.8 crores as per the lumpsum contract. The correspondence exchanged by the Plaintiff to the plaint also indicates that part of the work i.e. “transformer work” was removed from the scope of the work of the Plaintiff and was awarded directly to Ravi Electricals. The Plaintiff by its letter dated 21st November, 2008 (Ex.‘Z2’ to the plaint) had requested the architect to close their final bill after excluding the scope of work in respect of the said transformer work which was directly awarded to Ravi Electricals. It is, thus, clear that there is serious dispute raised by the Defendant about the quality of the work. Admittedly the claim in respect of the extra work is beyond the scope of the contract. The rates for such additional work are not agreed between the parties. Part of the work admittedly which was within the scope of the contract of the Plaintiff has been awarded to the third party. In my view, triable issues have been raised by the Defendant. Such disputed question of fact cannot be decided in the Summary Suit and can be decided at the trial of the suit. 11. I, therefore, pass the following order:- (a) Defendant is granted unconditional leave to defend the suit. (b) Defendant is directed to file Written Statement within eight weeks from the date of this order. (c) Suit is transferred to the list of commercial causes. 11. I, therefore, pass the following order:- (a) Defendant is granted unconditional leave to defend the suit. (b) Defendant is directed to file Written Statement within eight weeks from the date of this order. (c) Suit is transferred to the list of commercial causes. (d) Hearing of the suit is expedited. (e) Office is directed to place the matter for framing issues after pleadings are completed. (f) Summons for Judgment is accordingly disposed of in the aforesaid terms. (g) There shall be no order as to cost.