1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 770 OF 2007 IN NOTICE OF MOTION NO. 2235 OF 2006 IN SUMMONS FOR JUDGEMENT NO. 74 OF 2006 IN SUMMARY SUIT NO. 1597 OF 2005 Vikram Bulk Carrier .. Appellant.. Vs. L & T Finance Ltd., .. Respondent. Mr. Himanshu Dasondi for the Appellant. Mr. V.R. Dhond with Mr. Faizal and Mr. Mayar Bhojwani i/by M/s. M.K. Ambalal and Co. for the Respondent. CORAM : J. N. PATEL & SMT. R.P. SONDURBALDOTA, JJ DATE : 6TH OCTOBER, 2009 2 ORAL JUDGMENT : (Per J. N. Patel, J. ) Heard the learned counsel for the parties. 2. This appeal is filed by the Appellants-Original Defendants being aggrieved by the order dated 14th November, 2006 passed by the learned Single Judge in Notice of Motion No. 2235 of 2006. 3. The Respondents-Original Plaintiffs filed a suit on 29.03.2005 against the appellant-original defendants under Order XXXVII Rule 2 of the Code of Civil Procedure that the Defendants be ordered and decreed to pay to the Plaintiffs a sum of Rs. 4,32,64,634/- as on 31st December, 2004 as per the particulars of claim at Exhibit "E" together with further interest on the principal sum of Rs. 2,06,00,000/- at the rate of 18% per annum from 1st January, 2005 till the date of the suit and thereafter at the same rate till payment and/or realisation. The said suit was based on a higher purchase agreement executed between the parties on 19.03.1997 in respect of the financial facilities granted for purchasing 50 trucks which were agreed to be deployed with the group company of the Plaintiffs, namely L & T GCW and instalments were sought to be adjusted against freight charges. Subsequently, on 28.4.1999, the outstanding dues under the said higher purchase agreement came 3 converted into short term loan account of Rs. 2.06 crores and on 28.4.1999 an agreement to that effect came to be executed between the parties. It appears that Summons for Judgement came to be served on the Appellants-Original Defendants but the Appellants- Defendants failed to file any application for leave to defend. Therefore, on 19.6.2006 the matter came to be listed before the learned Single Judge and in absence of the Appellants-Defendants having not filed any application for leave to defend, the learned Single Judge granted the relief sought in the Summons for Judgement and decreed the suit in terms of prayer clauses (a) and (b) with an order of refund of court fees as per rules. 4. The Appellants thereafter moved the learned Single Judge by taking out notice of motion No. 2235 of 2006 for setting aside the ex-parte decree in which various pleas were raised. The said notice of motion was listed before the learned Single Judge for final disposal and that is how on 14th November, 2006, the impugned order came to be passed. 5. In the impugned order the learned Single Judge also took into consideration the defence raised by the Appellants-Original Defendants and arrived at a conclusion that the claim in the suit is for a sum of Rs. 4,32,64,634/- out of which the principal amount is of Rs.2,06,00,000/- which is reflected in the written statement Exhibit 4 "B" to the affidavit in support of the notice of motion. Therefore, the learned Single Judge found and observed as under :- "7. It is undoubted that the defendants are required to pay to the plaintiffs a large part of the loan. Despite a lengthy affidavit in support of the Notice of Motion, the defendants have not shown how much of the loan taken from the plaintiff is repaid. No loan account is also shown. Even if execution of the Notice of Motion is disputed, the liability under the loan agreement which carries interest @ 24 % p.a. upon the default cannot be under estimated." It is in this back-drop that the Court allowed the Notice of Motion in terms of prayer clauses (a), (b) and (c) but subject to the condition that the Appellants-Defendants should deposit a sum of Rs. 2 crores within 8 weeks and upon such deposit being made, Summons for Judgement shall be fixed for hearing in the week beginning 29th January, 2007 and if it is not deposited, the Respondents-Plaintiffs shall be entitled to execute the decree after a period of eight weeks. 6. We have heard the learned counsel for the parties and find that the Appellants-Defendants having failed to file their 5 appearance in spite of being served with the summons and did not seek any leave to defend within the stipulated period and, therefore, as a result on 19th June, 2006 the learned Single Judge allowed the Summons for Judgement and granted the relief by passing the judgment and decree as sought for. 7. It is thereafter in the notice of motion for setting aside the ex-parte decree under Order XXXVII Rule 2 of the Civil Procedure Code that for the first time the Appellants raised grounds on which they sought leave to defend. 8. The learned counsel for the Appellants-Defendants placed reliance on the decision of the Supreme Court rendered in the case of Sunil Enterprises and Another vs. SBI Commercial & International Bank Ltd., reported in (1998) 5 SCC 354 to emphasise that they were entitled for unconditional leave to defend. 9. In our view, the learned Single Judge while considering the notice of motion for setting aside the ex-parte decree has taken into consideration the case of the Appellants-Defendants on which the Appellants-Defendants sought to defend the suit and granted conditional leave thereby giving a fair opportunity to the Appellants- Defendants to defend the suit by setting aside the ex-parte decree on the aforesaid terms and conditions. Therefore, it canot be said 6 that the impugned order granting conditional leave to the Appellants-Defendants by directing them to deposit a sum of Rs. 2 crores within eight weeks calls for any interference. We, therefore, do not find any merit in the appeal and the same stands dismissed. 10. We grant eight weeks time to the Appellants- Defendants to comply with the impugned order particularly in respect of depositing a sum of Rs. 2 crores within the stipulated period of eight weeks and on such deposit being made, the summons for judgment can be fixed by the learned Single Judge for hearing in the week beginning from 9th November, 2009. If the amount is not deposited, the Respondents-Plaintiffs shall be entitled to execute the decree after a period of eight weeks. 11. As the appeal is disposed of, the notices of motion taken out therein do not survive and they all stand dismissed. ( J. N. PATEL, J) (SMT. R.P. SONDURBALDOTA, J.)