IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION APPEAL APPEAL APPEAL NO.45 OF 2008 NO.45 OF 2008 NO.45 OF 2008 IN SUIT NO.3595 OF 1996 Indec Equipment Private Ltd. ] a private Limited company ] registered under the Indian ] Companies Act 1956 and having ] Appellant/ their Office at 105 Veena ] Ori.Defendants Industrial Estate, ] Off New Link Road, Andheri (W) ] Mumbai - 400 053 ] Vs. M/s Saraf Enterprises ] a partnership firm duly ] registered under the Indian ] Partnership Act, 1932 and ] Respondents/ having their Office at A/2/57 ] Ori.Plaintiffs Shah Nahar Industrial Estate, ] Sitaram Jadhav Marg,Lower Parel ] Mumbai - 400 013 ] Mr. Sudhan Amare for Appellant. Mr. S.M. Kazi for Respondent. CORAM CORAM CORAM : R.M.S. KHANDEPARKAR & : R.M.S. KHANDEPARKAR & : R.M.S. KHANDEPARKAR & P.B. P.B. P.B. MAJMUDAR, JJ. MAJMUDAR, JJ. MAJMUDAR, JJ. DATE DATE DATE : 6TH MAY, 2008 : 6TH MAY, 2008 : 6TH MAY, 2008 ORAL ORAL ORAL JUDGMENT (PER R.M.S. KHANDEPARKAR, J.) :- JUDGMENT (PER R.M.S. KHANDEPARKAR, J.) :- JUDGMENT (PER R.M.S. KHANDEPARKAR, J.) :- 1. Heard. 2. Admit. Heard forthwith by consent. 3. Mr. S.M. Kazi waives service for the 2 respondent. 4. This appeal arises from the order dated 6th October, 2005 passed in Suit No. 3595 of 1996. The learned Single Judge has decreed the suit solely on the ground of failure on the part of the appellants who were the original defendants in the suit for their failure to file the written statement. The order specifically speaks of the suit having been decreed in exercise of powers under Order VIII, Rule X of the Code of Civil Procedure Code. 5. Though the impugned judgment and order is sought to be challenged on various grounds, it is not necessary to address to all those issues and suffice to refer only one point relating to the failure on the part of learned Single Judge to consider that the provisions of Order VIII, Rule X of the Code of Civil Procedure are not applicable to the suit filed on the Original Side in this Court. The law on this point is well settled by the decision of this Court in the matter Iridium Iridium Iridium India India India Telecom Ltd. Vs. Motorola Inc, reported in Telecom Ltd. Vs. Motorola Inc, reported in Telecom Ltd. Vs. Motorola Inc, reported in (2004) (2004) (2004) 1 Mah. LJ 532 1 Mah. LJ 532 1 Mah. LJ 532 and affirmed by Supreme Court in Iridium India Telecom Ltd. Vs. Motorola Iridium India Telecom Ltd. Vs. Motorola Iridium India Telecom Ltd. Vs. Motorola 3 Inc, Inc, Inc, reported in (2005) 2 Supreme Court Cases 145 reported in (2005) 2 Supreme Court Cases 145 reported in (2005) 2 Supreme Court Cases 145 and further by the decisions of the Division Bench in the matter of Tardeo Properties Pvt. Ltd. Vs. Tardeo Properties Pvt. Ltd. Vs. Tardeo Properties Pvt. Ltd. Vs. Bank Bank Bank of Baroda, reported in 2007(5) Bom.C.R.557 of Baroda, reported in 2007(5) Bom.C.R.557 of Baroda, reported in 2007(5) Bom.C.R.557 and All India Central Bank Employees Congress and All India Central Bank Employees Congress and All India Central Bank Employees Congress and ors. ors. ors. vs. Central Bank of India reported in 2007 vs. Central Bank of India reported in 2007 vs. Central Bank of India reported in 2007 (5) (5) (5) Bom.C.R.835 Bom.C.R.835 Bom.C.R.835. There is a specific procedure prescribed under the Original Side Rules framed by this Court which are required to be followed in such suits filed under Original Side of this Court. Admittedly the said procedure has not been followed in the case in hand. 6. Once it is clearly held by Apex Court that the provisions of Order VIII, Rule 10 would not be applicable to the proceedings to the suits filed under Original Side of this Court, the impugned order having been passed in exercise of those very provisions of law, without complying with the mandatory requirements under the Original Side Rules, the same cannot be sustained and is liable to be set aside and the matter needs to be remanded to the learned Single Judge to proceed with the suit in accordance with law as applicable to the suits on the Original Side of this Court. 4 7. Hence, the appeal succeeds on the above limited ground and is hereby allowed. The impugned order is set aside. The matter is remanded to the trial Court. 8. Since the suit is relates to the year 1996, the learned trial Court is requested to dispose of the matter as expeditiously as possible. The parties to appear before the trial Court on 10th June, 2008 for further proceedings in the matter. The date for appearing before the trial Court is noted by the learned Advocates appearing for the parties. There shall be no order as to costs. ( P.B. MAJMUDAR, J.) P.B. MAJMUDAR, J.) P.B. MAJMUDAR, J.) (R.M.S. KHANDEPARKAR,J.) (R.M.S. KHANDEPARKAR,J.) (R.M.S. KHANDEPARKAR,J.)