1 os-nms-3514-10app-1157-10-sj-259-ss-332-03 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi NOTICE OF MOTION NO. 3514 OF 2010 IN APPEAL NO. 1157 OF 2010 WITH APPEAL NO. 1157 OF 2010 IN SUMMONS FOR JUDGMENT NO. 259 OF 2003 IN SUMMARY SUIT NO. 332 OF 2003. International Thermal Techonology Kirchner Italia Branch S.p.A. ..Appellants. vs. Esteem Projects Pvt. Ltd. ..Respondents. .... Ms. Aparna Vishwanatha, a/w. S.L. Shah, i/b. Shah Legal, for Appellants. Ms. Snehal Shah, i/b. M/s. Pardiwala & Co., for Respondents. .... CORAM : MOHIT S. SHAH, C.J. & S.J.KATHAWALLA, J. DATE : 22ND DECEMBER 2010. P.C. This Appeal is directed against the order dated 4th October 2010 passed by the learned Single Judge on the Summons for Judgment taken out by the Respondents-Plaintiffs. By the order in Appeal, the Appellants-Defendants are permitted to defend the Suit only upon depositing in this Court a sum of Rs.38,98,012/- by 23rd December 2010. 2. The learned Single Judge passed the above order after 2 os-nms-3514-10app-1157-10-sj-259-ss-332-03 noting that on 15th September 2010, the Appellants-Defendants were granted time to file Affidavit-in-reply and were also directed to pay costs of Rs.20,000/- as condition precedent. The Appellants- Defendants failed to pay the costs as ordered. The Affidavit-in-reply was therefore, not taken on record and the learned Single Judge proceeded to hear the Summons for Judgment on merits without there being an Affidavit-in-reply of the Appellants-Defendants and passed the impugned order under Appeal. 3. Having heard the learned Counsel for the Appellants- Defendants and the learned Counsel for the Respondents-Plaintiffs without going into the merits of the matter, we are of the view that the interest of justice will be served if the appeal is disposed of with directions to the Appellants-Defendants to pay the Respondents- Plaintiffs cost quantified at Rs.50,000/- for the hearing before the learned Trial Court and Rs. 50,000/- being costs in Appeal. The Appellants-Defendants shall therefore forward a cheque of Rs. 1,00,000/- drawn in favour of the Respondents-Plaintiffs on or before 15th January 2011 to the Advocates for the Respondents-Plaintiffs. Upon payment of the said costs, the order dated 4th October 2010 shall stand set aside and the Summons for Judgment No.259 of 2003 shall stand restored. 4. The Appellants-Defendants are granted time to file their written statement on or before 15th January 2011. However, the Appellants-Defendants shall serve an unaffirmed copy of their Affidavit-in-reply to the Summons for Judgment to the learned Advocate for the Respondents-Plaintiffs within one week from the date of this order. In case the amount of cost aggregating to Rs. 3 os-nms-3514-10app-1157-10-sj-259-ss-332-03 1,00,000/- is not paid by the Appellants-Respondents to the Respondents-Plaintiffs on or before 15th January 2010 and/or the Affidavit-in-reply is not filed also on or before 15th January 2010, the Appeal shall stand dismissed. Upon payment of costs and filing of the Affidavit-in-reply by the Appellants-Defendants within the prescribed time, the learned Single Judge shall dispose of the Summons for Judgment as expeditiously as possible and preferably by 15th February 2011. 5. The Appeal as well as the Notice of Motion accordingly stand disposed of. CHIEF JUSTICE [ S.J. KATHAWALLA, J. ]