=1= IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION APPEAL APPEAL APPEAL NO.587 OF 2004 NO.587 OF 2004 NO.587 OF 2004 IN IN IN SUMMONS SUMMONS SUMMONS FOR FOR FOR JUDGMENT NO.226 OF 1997 JUDGMENT NO.226 OF 1997 JUDGMENT NO.226 OF 1997 IN IN IN SUMMARY SUMMARY SUMMARY SUIT SUIT SUIT NO.350 OF 1997 NO.350 OF 1997 NO.350 OF 1997 M/s Radha Textile Agency and ors. ...Appellants v/s Mr Sureshchand G. Arora and ors. ...Respondents WITH WITH WITH APPEAL APPEAL APPEAL NO.630 OF 2004 NO.630 OF 2004 NO.630 OF 2004 IN IN IN SUMMONS SUMMONS SUMMONS FOR JUDGMENT NO.226 OF 1997 FOR JUDGMENT NO.226 OF 1997 FOR JUDGMENT NO.226 OF 1997 IN IN IN SUMMARY SUMMARY SUMMARY SUIT NO.350 OF 1997 SUIT NO.350 OF 1997 SUIT NO.350 OF 1997 Mr Sukhdev Raj Arora ...Appellant v/s Mr Sureshchand G. Aroa and ors. ...Respondents =2= WITH WITH WITH APPEAL APPEAL APPEAL NO.631 OF 2004 NO.631 OF 2004 NO.631 OF 2004 IN IN IN SUMMONS SUMMONS SUMMONS FOR JUDGMENT NO.228 OF 1997 FOR JUDGMENT NO.228 OF 1997 FOR JUDGMENT NO.228 OF 1997 IN IN IN SUMMARY SUMMARY SUMMARY SUIT NO.472 OF 1997 SUIT NO.472 OF 1997 SUIT NO.472 OF 1997 Grevalon Textile Mills (P) Ltd. ...Appellants v/s Mr Sureshchand G. Arora and ors. ...Respondents WITH WITH WITH APPEAL APPEAL APPEAL NO.632 OF 2004 NO.632 OF 2004 NO.632 OF 2004 IN IN IN SUMMONS SUMMONS SUMMONS FOR JUDGMENT NO.228 OF 1997 FOR JUDGMENT NO.228 OF 1997 FOR JUDGMENT NO.228 OF 1997 IN IN IN SUMMARY SUMMARY SUMMARY SUIT NO.472 OF 1997 SUIT NO.472 OF 1997 SUIT NO.472 OF 1997 M/s Radha Textile Agency and anr. ...Appellants v/s Sureshchand G. Arora and anr. ...Respondents =3= Mr S.P. Kanuga i/b Mr M.V. Aiya for Appellants. Mr S.K. Jain for Respondent No.1. CORAM CORAM CORAM : D.K. DESHMUKH AND A.A. SAYED JJ. : D.K. DESHMUKH AND A.A. SAYED JJ. : D.K. DESHMUKH AND A.A. SAYED JJ. DATE DATE DATE : 18TH FEBRUARY 2009 18TH FEBRUARY 2009 18TH FEBRUARY 2009 P.C. :- 1. These appeals are directed against the same order passed by the learned Single Judge of this Court, parties are also common, therefore all the appeals can be conveniently disposed off by a common order. The relevant facts are that one Sureshchand G. Arora filed two summary suits i.e. summary suit No.350 of 1997 and summary suit No.472 of 1997. In summary suit No.350 of 1997, M/s Radha Textile Agency was joined as defendant No.1 and Smt Radharani Sukhdev Arora was joined as defendant No.2. Admittedly, defendant No.1 is a proprietary concern of the defendant No.2. Therefore, defendant Nos.1 and 2 are the same. Defendant No.3 - Sukhdev Raj Arora is husband of defendant No.2. In summary suit No.472 of 1997, defendant Nos.1 and 2 are common but defendant No.3 - Grevalon Textile Mills Pvt.Ltd. is a company where defendant No.2 is one of the Directors. Both the summary suits are based on the cheques which are alleged to have been issued by the =4= defendant No.2 - M/s Radha Textile Agency in favour of the plaintiff. It is common ground that Smt Radharani in her own right is not liable to the plaintiff. It is alleged that she has given cheques to the plaintiff to clear the liability in summary suit No.350 of 1997 of her husband Sukhdev and in summary suit No.472 of 1997 of M/s Grevalon Textile Mills Pvt.Ltd., a Company. We have gone through the record. We do not find that there is any written contract between the plaintiff on one hand and Mr Sukhdev Raj Arora - defendant No.3 in summary suit No.350 of 1997 and between plaintiff and the Company - Grevalon Textile Mils Pvt.Ltd. in summary suit No.472 of 1997. In the absence of any written contract between plaintiff and defendant No.3 in both the suits, obviously the summary suit against defendant No.3 will not be maintainable and therefore, the defendant No.3 would be entitled to unconditional leave to defend the suits. Because of that, the defendant No.2 will have to be granted unconditional leave to defend the suits because defendant No.2 on her own is not liable to the plaintiff, she has given the cheques to clear the alleged liability of others in both the suits to the plaintiff. In our opinion therefore, in both the suits, all the defendants would be entitled to unconditional leave to defend the suits. In the result therefore, all the appeals succeed and are allowed, the orders impugned in appeals are set aside. All the =5= defendants are granted unconditional leave to defend the suits. It is clarified that the amount which has been deposited by the defendants in this Court pursuant to the order made for setting aside ex-parte decree earlier shall remain in deposit during the trial of the suits. The defendants to file written statements within a period of eight weeks from today. The amount that has been deposited excluding the amount referred to above by the defendants pursuant to the order impugned in the appeals be refunded to the defendants with accruals if any. . Parties to act on the copy of this order duly authenticated by the Associate / Private Secretary of the Court. . Certified copy is expedited. ( D.K. DESHMUKH J.) ( A.A. SAYED J.)