[1] IN THE HIGH COURTOF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 674 OF 2004 IN SUMMONS FOR JUDGMENT NO. 167 OF 2003 IN SUMMARY SUIT NO. 3769 OF 2002 Central Wearhousing Corporation ... Appellants. Vs. 1. Kaumudi P. Kothari & anr. ... Respondents. Mr. S.I.Shah for the appellants. None for the respondents. CORAM CORAM CORAM : D.K.Deshmukh and : D.K.Deshmukh and : D.K.Deshmukh and A.A.Sayed, A.A.Sayed, A.A.Sayed, JJ. JJ. JJ. DATE DATE DATE : February 24, 2009. : February 24, 2009. : February 24, 2009. P.C. 1. By this appeal the appellants have challenged the order passed by the learned Single Judge of this Court dated 22nd September, 2004 in Summons for [2] Judgment No. 167 of 2003 in Summary Suit No. 3769 of 2002. 2. The respondent-Plaintiff filed a Summary Suit being Summary Suit No. 3769 of 2002 for recovery of arrears of rent. The arrears of rent were claimed as per the written contract which is admittedly between the original plaintiff and the defendants. Admittedly within the period of 10 days from the service of summons for judgment no application seeking leave of the court to defend the suit was filed. The Court at the request of the defendant granted further time. Even during that time no application for leave to defend was filed. It appears that still the court heard the advocate for the defendant and passed the order on merit holding that none of the objections raised on behalf of the defendants have any substance. The first objection raised was that because there is an arbitration clause the suit is not maintainable. If according to the defendant there was an arbitration clause, the defendant should have applied under Section 8 of the Arbitration and conciliation Act, 1996 for referring the matter to Arbitration. Without they invoking that clause, it cannot be said that because of existence of arbitration clause the suit is not maintainable. In our opinion, therefore that objection has been rightly overruled by the learned Single Judge. [3] The second objection was that the agreement is unstamped and unregistered. There is no requirement of agreement being registered. So far as unstamped part of the agreement is concerned, in our opinion for claiming arrears of rent that is not material, it may be used for the purpose of recovery of the rent. The third objection was about termination of lease. In our opinion, the learned Single Judge has properly considered this aspect also and has granted conditional leave to defend on depositing the amount of Rs. 4 lakhs. The appellants have already deposited that amount pursuant to the interim order passed by this Court. We do not see any merit in this appeal. However, as the appellants have complied with the condition, leave to defend the suit stands granted to the appellants. Written statement to be filed within a period of 12 weeks from today. 3. Appeal is disposed of. 4. Notice of Motion No.3305 of 2004 disposed of. [D.K.Deshmukh, [D.K.Deshmukh, [D.K.Deshmukh, J.] J.] J.] [A.A.Sayed, [A.A.Sayed, [A.A.Sayed, J.] J.] J.] [4] IN THE HIGH COURTOF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 675 OF 2004 IN SUMMONS FOR JUDGMENT NO. 168 OF 2003 IN SUMMARY SUIT NO. 3768 OF 2002 Central Wearhousing Corporation ... Appellants. Vs. 1. Kaumudi P. Kothari & anr. ... Respondents. Mr. S.I.Shah for the appellants. None for the respondents. CORAM CORAM CORAM : D.K.Deshmukh and : D.K.Deshmukh and : D.K.Deshmukh and A.A.Sayed, A.A.Sayed, A.A.Sayed, JJ. JJ. JJ. DATE DATE DATE : February 24, 2009. : February 24, 2009. : February 24, 2009. P.C. 1. By this appeal the appellants have challenged the order passed by the learned Single Judge of this Court dated 22nd September, 2004 in Summons for Judgment No. 168 of 2003 in Summary Suit No. 3768 of [5] 2002. 2. The respondent-Plaintiff filed a Summary Suit being Summary Suit No. 3768 of 2002 for recovery of arrears of godown rent. The arrears of rent were claimed as per the written contract which is admittedly between the original plaintiff and the defendant No.1. Admittedly within the period of 10 days from the service of summons for judgment no application seeking leave of the court to defend the suit was filed. The Court at the request of the defendant granted further time. Even during that time no application for leave to defend was filed. It appears that still the court heard the advocate for the defendant and passed the order on merit holding that none of the objections raised on behalf of the defendants have any substance. The first objection raised was that because there is an arbitration clause the suit is not maintainable. If according to the defendant there was an arbitration clause, the defendant should have applied under Section 8 of the Arbitration and conciliation Act, 1996 for referring the matter to Arbitration. Without they invoking that clause, it cannot be said that because of existence of arbitration clause the suit is not maintainable. In our opinion, therefore that objection has been rightly overruled by the learned Single Judge. The second objection was that the agreement is [6] unstamped and unregistered. There is no requirement of agreement being registered. So far as unstamped part of the agreement is concerned, in our opinion for claiming arrears of rent that is not material, it may be used for the purpose of recovery of the rent. The third objection was about termination of lease. In our opinion, the learned Single Judge has properly considered this aspect of the matter and has granted conditional leave to defend on depositing the amount of Rs. 10 lakhs. The appellants have already deposited that amount pursuant to the interim order passed by this Court. We do not see any merit in this appeal. However, as the appellants have complied with the condition, leave to defend the suit stands granted to the appellants. Written statement to be filed within a period of 12 weeks from today. 3. Appeal is disposed of. [D.K.Deshmukh, [D.K.Deshmukh, [D.K.Deshmukh, J.] J.] J.] [A.A.Sayed, [A.A.Sayed, [A.A.Sayed, J.] J.] J.]