-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No.6895 of 2007 Uttarakhand Education Societies Bharatiya Vidyalaya and Divine Pupils Academic ..Petitioner vs. Maharashtra Institute of Advance Electronic and Computer Technology ..Respondent Shri P.S.Dani for petitioner. Shri A.L.Latankar for respondent. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. 23rd January, 2008 23rd January, 2008 23rd January, 2008 P.C. P.C. P.C. 1. Rule. Returnable forthwith. Learned Counsel for respondent waives notice. Heard both the learned Counsel. 2. The petitioners are the original defendants in summary suit no.66 of 2003 which has been filed by the respondents for recovery of a sum of Rs.11,22,303/- 3. Since the suit was filed invoking Order 37 of the Code of Civil Procedure after the procedure prescribed by law was followed, the summons for judgment was served on the petitioners who had put in appearance through -2- the Advocate. The petitioners applied for leave to defend which was opposed by the respondents. 4. The learned Judge has passed the impugned order but while allowing the application for leave to defend preferred by the petitioners has imposed a condition upon them to furnish the bank guarantee of Rs.11,00,000/- within one month from the date of the order. 5. I have perused the plaint, leave application and reply thereto so also the impugned order. It is difficult to sustain the reasoning of the learned Judge in paras 9 and 10 of the impugned order. The learned Judge was fully aware that the sum as claimed has not been ascertained and determined. In such circumstances, it was doubtful as to whether the suit was maintainable as a summary suit. Therefore, the application for leave to defend, in my view, ought to have been allowed without imposing any conditions. Even the learned Advocate appearing for the respondents/original plaintiffs found it difficult to support the impugned order. 6. In such circumstances and in facts peculiar to this case, order under challenge is set -3- aside. The application for leave to defend is allowed. The petitioners are granted unconditional leave to defend. The suit is to be tried hereafter as ordinary suit and disposed of in accordance with law. Rule is accordingly made absolute. No order as to costs. (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.)