- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION. ORIGINAL CIVIL JURISDICTION. ORIGINAL CIVIL JURISDICTION. jmi NOTICE OF MOTION NO.1401 OF 2009 IN SUMMARY SUIT NO.2581 OF 2005. M/s.Automat Road Safety Pvt.Ltd. ..Plaintiffs. vs. M/s.Sumber Mitra Jaya & Anr. ..Defendants. .... Mr.P.G.Vora, for Plaintiffs. Mr.K.T. Kukreja, i/b. Mr.Devang H. Shah, for Defendant No.2. .... CORAM CORAM CORAM: S.J.KATHAWALLA, J. S.J.KATHAWALLA, J. S.J.KATHAWALLA, J. DATE DATE DATE : 17TH APRIL, 2009 : 17TH APRIL, 2009 : 17TH APRIL, 2009. P.C.: P.C.: P.C.: . By consent of the parties, Notice of Motion is taken up for final hearing. 2. This notice of motion is taken out by the defendant no.2 for setting aside of the ex-parte decree dated 5th September 2006 passed in summary suit no.2581 of 2005. The suit has been filed by the plaintiffs against the defendant nos.1 & 2 for recovery of the retention money of the plaintiffs deposited with the defendant no.1 under a written contract dated 13th December 2002 (Exhibit-A) to the plaint. 3. Admittedly, defendant no.2 is the sub-contractor of defendant no.1 and there is no privity of contract between the plaintiffs and defendant no.2. The contract - 2 - dated 13th December 2002 is signed only between the plaintiffs and the defendant no.1. 4. The learned Advocate appearing for the plaintiffs states that he was entitled to a decree against the defendant no.2 because certain goods were supplied/provided by the plaintiffs to the defendant no.2. However, no delivery challan in respect of the goods purportedly sent to the plaintiffs by the defendant no.2 is produced by the plaintiffs. Again, it is not explained that even if some goods are supplied by the plaintiff to defendant no.2, how the plaintiff would be entitled to recover the retention money deposited with the defendant no.1, under a written contract dated 13th December 2002. In view thereof, the plaintiffs is unable to explain as to how a summary suit is maintainable against the defendant no.2. 5. In view thereof, the ex-parte decree passed by this Court against defendant no.2 dated 5th September 2006 is set aside and the notice of motion taken out by the defendant no.2 is made absolute in terms of prayer clauses (a) & (b). However, this order will not preclude the plaintiffs from taking out a summons for judgment against the defendant no.2, which, if taken out, will be heard on its own merits without taking into consideration the observations made in this order. - 3 - 6. Needless to add that since the ex-parte decree against the defendant no.2 is set aside, the plaintiffs will not proceed with the execution proceedings commenced against the defendant no.2. Notice of Motion stands disposed of, with no order as to costs. [S.J.KATHAWALLA, [S.J.KATHAWALLA, [S.J.KATHAWALLA, J.] J.] J.]