: 1 : SJ-83-09=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 83 OF 2009 IN SUMMARY SUIT NO. 3462 OF 2008 Abhijit Hosing Pvt. Ltd. .. Plaintiffs v/s. Jitendra Amratlal Shah & Anr. .. Defendants ......... Ms. Mamta Sadh i/by P.G. Sawant for the plaintiffs Mr. Roopesh Lanjekar for defendant no.2 ......... CORAM : R.Y.GANOO, J. DATE : 7th OCTOBER, 2010 P.C. : 1. This summons for judgment is taken out only against defendant no. 2. Heard learned Counsel on both sides. The defendant no.1 agreed to sale the property described in Agreement dated 30th August, 2004 in favour of the plaintiffs and defendant no.2 acted as conforming party. A sum of Rs.5 lakhs to defendant no.1 and Rs.27 lakhs to defendant no. 2 were paid in terms of the said agreement. The plaintiffs claim that said agreement could not go through and that is how plaintiffs asked defendant no.2 to return to plaintiffs Rs.27 lakhs. According to plaintiffs, notice terminating the memorandum of agreement dated 30th August, 2004 was given. Defendant no.2 has admitted receipt of the said sum of Rs.27 lakhs however, they have disputed the claim of the plaintiffs. : 2 : SJ-83-09=.sxw 2. After having heard learned Counsel on both sides and after having understood the nature of the dispute, I am inclined to observe that the present suit does not fall within the ambit of Order 37 of Civil Procedure Code. Learned Counsel for the plaintiffs made efforts to submit that defendant no.2 is liable to pay the amount by relying upon clause 8 of the suit agreement. In my view, the plaintiffs will have to show that they had rightly terminated the agreement and that is how they are entitled to receive amounts from defendant no.2. All these things will certainly required evidence. Defendants have not admitted their liability to repay Rs.27 lakhs. If this is so, defendant no.2 is entitled unconditional leave to defendant. Hence, following order is passed to dispose of the summons for judgment. ORDER (i) Defendant no.2 is granted unconditional leave to defend. (ii) Defendant no.2 to file written statement directly in the Court on or before 2nd December, 2010. Defendant no.2 to serve copy of the written statement upon advocate for the plaintiffs within 10 days from filing of the written statement in the office. There shall be no order as to costs. (R.Y.GANOO, J.)