1 SJ151.09.sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 151 OF 2009 IN SUMMARY SUIT NO. 2146 OF 2008 Mr. Sharad V. Sharma. ... Plaintiff. V/s. Mr. Hemani Desai and Ors. ... Defendants. Mr. R.L. Tolat i/b. L.C. Tolat & Co. for the Plaintiff. Mr. D.A. Athavale for Defendant 1. Ms. J.P. Kar i/b. AKS Legal Consultants for Defendant 5. CORAM : R.Y. GANOO, J. DATED : 25th NOVEMBER 2010. P.C. :- Defendant Nos.1 to 5 are the erstwhile partners of partnership firm M/s. Ametej International. The Plaintiff is father-in-law of Defendant No.5. It is the case of the Plaintiff that to enable the said firm and Defendant Nos.1 to 5 to run the firm, the Plaintiff advanced a loan of Rs.12,50,000/-. Out of this amount, a sum of Rs.1,10,000/- is said to have been paid by cash and remaining amount has been paid by cheque. No document is said to be executed by any of the partner in the nature of the promissory note or any other document by which the liability to repay the loan is accepted. The 2 SJ151.09.sxw Summary Suit is filed on the basis of the said advancement of loan only. On perusal of the record it is clear that the Summary Suit is filed without complying with the provisions of Order XXXVII Rule 1 of the C.P.C. 2. Learned Counsel Mr. Tolat appearing on behalf of the Plaintiff submitted that the partnership firm had prepared their books of accounts and in the books of accounts the Plaintiff is shown as creditor and if that document is seen, it will clearly go to show that institution of the present Suit for recovery of monies by way of a Summary Suit is appropriate. I am unable to accept this argument. A Summary Suit cannot be filed only on the basis of entry in the books of account of Defendants where the Plaintiff is shown as Creditor. Even otherwise, the Plaintiff is claiming interest at the rate of 12% per annum. There is no document manifesting agreement to the effect that interest was payable at the rate of 12%. The institution of the present Suit as Summary Suit cannot be accepted so far as all the Defendants are concerned. 3. It is pertinent to note that Defendant No.6 is a partnership firm and the Plaintiff has not been able to establish as to how Defendant No.6 can be made liable to pay the so called dues which the Plaintiff is trying to recover. The Plaintiff claims that Defendant Nos.2,3 and 4 are carrying on business in the name and style of Defendant No.6 and that is how the liability is sought to be fastened upon Defendant No. 6. This stand is reflected in paragraph 12 of the plaint. The 3 SJ151.09.sxw contention raised by the Plaintiff in this behalf cannot be accepted and to that extent no case is made out as against Defendant No.6. 4. For the reasons mentioned aforesaid, I am inclined to observe that all the Defendants are entitled unconditional leave to defend the Suit. 5. Hence, following order is passed to dispose of the Summons for Judgment :- (i) Unconditional leave is granted to each of the Defendants to defend the Suit. (ii) The Defendants to file written statement directly in the Office on or before 17th January 2011. (iii) The Defendants to serve copy of the written statement upon Advocate for the Plaintiff one week in advance before the adjourned date. (iv) There shall be no order as to costs. (R.Y. GANOO, J.)