=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.561 OF 2004 NO.561 OF 2004 NO.561 OF 2004 IN IN IN SUMMONS SUMMONS SUMMONS FOR FOR FOR JUDGMENT NO.766 OF 2002 JUDGMENT NO.766 OF 2002 JUDGMENT NO.766 OF 2002 IN IN IN SUMMARY SUMMARY SUMMARY SUIT SUIT SUIT NO.1382 OF 2002 NO.1382 OF 2002 NO.1382 OF 2002 Alfred Michael Arambhanand anr. ...Appellant v/s Richard Joseph D’Souza ...Respondent Mr S.C. Naidu i/b M/s C.R. Naidu and Co. for Appellants. None for Respondent. 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 =2= P.C. :- 1. By this appeal, the appellants challenge the order dated 2nd April 2004 passed by the learned Single Judge of this Court in summons for judgment No.766 of 2002. By that order, the learned Single Judge has granted conditional leave to defend to the defendant Nos.1 and 2. It is the case of the defendants that in the facts and circumstances of the case, they are entitled to unconditional leave to defend the suit. The necessary facts are that the respondent filed summary suit No.1382 of 2002. That suit was based on a contract of employment dated 29th September 2000 between plaintiff and defendant No.1 who described himself as Managing Partner of M/s Transnational Supply and Services. According to the plaintiff, the defendant No.1 entered into contract with the employer of the plaintiff and employed the plaintiff for formation of defendant No.2 Company. The defendant No.2 Company was incorporated in October 2000. According to the particulars of claim, the defendants did not pay agreed salary to the plaintiff from August 2000 to July 2001 i.e. amount of Rs.24,00,000/-. They paid him only Rs.3,00,000/- and therefore the suit was filed for recovery of amount of Rs.21,00,000/-. The defendant =3= Nos.1 and 2 appeared when the summons for judgment was taken out and filed their objections. The first and foremost objection was that there is no privity of contract between plaintiff and defendant No.2. The suit is based on a written contract between plaintiff and defendant No.1. Admittedly, on that date, the defendant No.2 Company was not in existence and therefore, unless and until a contract of employment is entered into between the plaintiff and defendant No.2 after its incorporation or the contract dated 29th September 2000 entered into between plaintiff and defendant No.1 is ratified by the Company, the contract will not be binding on the defendant No.2 Company. Perusal of the order of the learned Single Judge impugned shows that the leaned Single Judge has not appreciated the real nature of the objection. The learned Single Judge has held that because the plaintiff has worked for defendant No.2 Company he is entitled to wages from defendant No.2 Company forgetting that this was a summary suit and there must be a written contract between the parties for maintaining a summary suit. Therefore, so far as the defendant No.2 is concerned, in the absence of written contract between plaintiff and defendant, summary suit may not be maintainable. The defendant No.2 is therefore entitled to unconditional leave to defend the suit. Once it is held that the defendant No.2 is entitled to unconditional leave to defend, the defendant =4= No.1 also becomes entitled to unconditional leave to defend because according to the plaintiff, both the defendants are jointly and severally liable. If the liability of the defendant Nos.1 and 2 is joint and if defendant No.2 is entitled to unconditional leave to defend, then the defendant No.1 will also have to be given an opportunity to contest the suit. Apart from this, there does appear to be a very good reason why defendant No.1 would be entitled to unconditional leave to defend the suit because the defendant No.1 had engaged the services of the plaintiff for incorporation of the defendant No.2 Company. Admittedly, after incorporation of defendant No.2 Company, as per the plaint allegation, the defendant No.2 Company never took off. If that is so, then there is reason to believe that the plaintiff did not actually work for the defendant No.2. Then, the plaintiff will have to prove that he actually worked for both the defendants for the period from August 2000 to July 2001, otherwise his claim will be for damages and not for salary. In our opinion, therefore, the defendant No.1 is also entitled for unconditional leave to defend the suit. In the result therefore, appeal succeeds and is allowed, the order impugned is set aside. Summons for judgment No.766 of 2002 is disposed off. Both the defendants are granted unconditional leave to defend the suit. Written statement to be filed within eight weeks from today. It =5= goes without saying that if the decree is passed in suit on the basis of order impugned in the appeal, that decree will not survive. . 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.)