1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Summons for Judgment No.345 of 2009 . in Summary Suit No.2523 of 2001 Kasamali Auleman Zaveri .. Plaintiff v/s. Mrs.Noorjahan S. Somani & Anr. ..Defendants Mr.M.L.Palan i/b.B.S.Chandani for the Plaintiff. Mr.B.H.Gada i/b. M/s. Harakchand & Co. for the Defendant Nos.1 and 2 CORAM : R.Y.GANOO, J. DATED : 6th April, 2010 P.C. : 1. The present suit came to be filed for recovery of monies on the basis of the suit agreement at Exhibit A. The suit came to be filed on 12.6.2001. After service of writ of summons upon both the defendants, First summons for judgment came to be filed on 13.8.2009 being Summons for Judgment No.329 of 2009. It appears that there was some technical mistake in this Summons for Judgement No.329 of 2008 and therefore by Order dated 13.8.2009 the said Summons for Judgment was allowed to be withdrawn with liberty to file fresh Summons for Judgment. Fresh 2 Summons for Judgment came to be filed on 24.8.2009 being Summons for Judgment No.345 of 2009. It is true that soon after the withdrawal of the first Summons for Judgment on 13.8.2009, second Summons for Judgment i.e. the present Summons for Judgment was filed within the span of 10 days. 2. Affidavit in reply to the Summons for Judgment and re-joinder thereto has been filed. Learned Advocate Mr. Palan took me through the record and submitted that the defendant has not been able to place before the Court any defence which can be considered as defence to enable the defendants to get unconditional leave to defend the suit. According to him, plaintiff is entitled to decree in terms of unconditional leave to defend. 3. Learned Advocate for defendants contended that the plaintiff was not vigilant and plaintiff took out the Summons for Judgment after about seven years and this delay in taking out the Summons for Judgment is fatal and the defendants are entitled to unconditional leave to defend. He submitted that it may be true that first Summons for Judgment was allowed to be withdrawn in view of the defect in the judgment and the consequent Summons for Judgment was taken out promptly i.e. within a period of 10 3 days. He submitted that the promptness shown by the plaintiff in taking out the present summons for judgment cannot be used by the plaintiff to give a go by to the delay which had occurred in taking out the first summons for judgment. He submitted that by fiction of second Summons for Judgment will have to be treated as the Summons for Judgment taken out in the suit in the first instance. According to him, the delay has not been properly explained and on this ground alone, the defendants have made out a case for unconditional leave to defend. Learned Advocate for the Defendants reiterated his contentions and submitted that the defendants have made out a case for unconditional leave to defend. 4. After having considered the record, I am inclined to observe that the defendants are entitled to unconditional leave purely on the ground that the Summons for Judgment has been taken out after the lapse of about 7 years and there is no satisfactory explanation for filing the Summons for Judgment after lapse of about 7 years. In a summary suit it is expected of the plaintiff that he should be vigilant and the plaintiff is required to take out summons for judgment, no sooner the appearance is filed by the defendants. It is possible that some time may be taken by the plaintiffs’ to know about the filing of the vakalatnama by any of the defendants. 4 However, the delay which has resulted in the present suit is fatal and on this ground alone, I am inclined to consider the case of the defendants for grant of unconditional leave. Once it is settled that the defendants are entitled to unconditional leave to defend on the ground of lapse on the part of the plaintiff to take out the Summons for Judgment promptly it is not necessary for the Court to consider the submission of Plaintiff that Defendants have no defence. The delay in taking out the Summons for Judgment is fatal. It goes to the root of the matter and therefore the Plaintiffs can’t expect order in their favour. Hence, following order is passed. ORDER i. Unconditional leave is granted to both the defendants to defend the suit. ii. Defendants to file written statement directly in the court on 15.6.2010. Suit to be treated as Commercial Cause Suit. iii. Suit is expedited. Suit to come up on board on 15.6.2010 for filing written statement. [R.Y.GANOO, J.]