1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 501 OF 2008 IN SUMMONS FOR JUDGMENT NO.52 OF 2008 IN SUMMARY SUIT NO.2147 OF 2007 Mohammed Afzal Mohammed Ismail Memon. .. Appellant Vs. Ramulu B. Shekeli. .. Respondent -- Shri A.Y. Bookwala i/by Shri M.Y. Sayani for the Appellant. Shri Simil Purohit i/by Manoj Bhatt for the Respondent. -- CORAM : SWATANTER KUMAR, C.J. & DR. D.Y. CHANDRACHUD, J DATED : 2ND FEBRUARY, 2009 P.C. We have heard learned Counsel appearing for the parties. The present Appeal is directed against the order dated 17th October, 2008 passed in Summons for Judgment No.52 of 2008 in Summary Suit No.2147 of 2007 filed by the Respondent herein. The learned Single Judge has exercised judicial discretion and we hardly 2 see any reason to interfere in the impugned order. The only question that concerns in the matter is that at no point of time in the present case, the Appellant had admitted liability of Rs.34,73,326.70 ps. The defence raised by the Appellant is plausible but this matter has to be gone into by the Court during trial. The defence raised is not a sham one. The learned Single Judge has granted leave to defend the suit subject to deposit. The leave is modified to the extent of deposit of Rs.34,73,326.70 ps., instead of which the Appellant to furnish bank guarantee before the Registrar (O.S.)/Prothonotary and Senior Master, High Court, Bombay, within a period of four weeks from today and the same will be kept alive during the pendency of the proceedings. 2. The learned Counsel appearing for the parties further commonly concede and state that there is an arbitration clause in the agreement for reference of a dispute to the Arbitrator. The parties suggest name of Shri Rajeev Kumar for being appointed as an Arbitrator. By consent of the parties, we appoint Shri Rajeev Kumar as Sole Arbitrator, who shall enter upon the reference in accordance 3 with law. The order with regard to furnishing bank guarantee shall remain in force till the order is vacated and/or modified by the learned Arbitrator. 3. The Appeal and the suit accordingly disposed of. CHIEF JUSTICE DR. D.Y. CHANDRACHUD, J