1 hvn IN THE HIGH COURT OF JUDICUATURE AT MUMBAI ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 240 OF 2010 IN SUMMONS FOR JUDGMENT NO. 235 OF 2009 IN SUMMARY SUIT NO. 2198 OF 2008 Falcon Marine Management Pvt. Ltd. ... Appellant Versus Cagendish Shipping Limited ... Respondent Mr. Shardul Singh i/by Duttmonon Dunmorsett for appellant. Mr. Janak Dwarkadas, Sr. Counsel with Mr. Sharan Jagtiani for R. No. 1. CORAM : F.I. REBELLO & R.V. MORE, JJ. DATED : JUNE 22, 2010 P. C.: The appellants are before this court against the order dated 15.3.2010 whereby the learned Judge has held that the suit filed for recovery of the balance amount of Rs. 10,03,328/- has no substantial defence and that part of the loan remains due and payable despite admission of receipt and accordingly made the summons for judgment absolute as prayed and decreed the suit. By an order dated 8.4.2010, certain typographical errors were corrected. In this appeal on behalf of the appellants, it has been submitted by the learned counsel that the appellants had disclosed a triable defence that the balance loan amount had been repaid and in these circumstances, the 2 Plaintiff ought to have been granted leave to defend. It is also submitted that they are willing to deposit the amount in court. The case of the Plaintiff was that Plaintiff advanced to the appellant herein on 15.1.2004 sum of US #1,50,000 and on 16.4.2004 another sum in US #1,00,000 . According to them a sum of US #2,24,970 was paid but the further payment of US #25,000 was against another separate distinct and different contract between the parties. The dispute is regarding the balance amount of US #25,000. In the plaint, it appears that there are certain companies associated with the Plaintiff and defendant and the loans advanced are not necessarily by the Plaintiff but by their subsidiary companies but according to Plaintiffs, this has been done on behalf of the Plaintiff and accepted by the defendant. The law on the issue of summary suit and leave to defend is settled by the judgment of the Supreme Court in M/s. Mechalec Engineers & Manufacturers Versus M/s. Basic Equipment Corporation AIR 1977 Supreme Court 577. The Supreme Court has laid down the tests for grant of leave to defend. From the impugned order of the learned Judge, it is clear that it is not the finding of the learned Judge that there is no defence but that there is no substantial defence. If that be the case, in our opinion, considering the proposition (e) of Para 8 of the Judgment in Mechalec Engineers (supra), the 3 appellant ought to have been given an opportunity of defending the suit on such terms and conditions as the court deems fit and proper. In the light of that the following order : The appellant to deposit in this court sum of Rs.10,03,328/- within two weeks from today. On such deposit, the appellants are given leave to defend On the amount being deposited, it will be open to the respondents to withdraw the said amount by furnishing security to the satisfaction of the Prothonotary and Senior Master. The impugned order to that extent is modified. (R.V. MORE, J.) (F.I. REBELLO,J.)