1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.104 OF 2004 IN SUMMONS FOR JUDGMENT NO.825 OF 2002 IN SUMMARY SUIT NO.951 OF 2002 Aries Pharmaceuticals. ...Appellant Vs. 1.Shri.Suresh P.Varma & another. ...Respondents. --- Mr.Rajiv Narula with Basant Tilokani i/b. Basant Tilokani & Co., for Appellant. None for Respondents. --- CORAM: D.K.DESHMUKH & A.A.SAYED, JJ. DATED: 17th February,2009. P.C.:- 2 1. By this appeal, the appellant challenges the order passed by the learned Single Judge of this Court dated 5.12.2003 in Summons for Judgment no.825 of 2002, by which the learned Single Judge has granted conditional leave to defend the suit to the present appellant who is defendant no.1 in Summary suit no.951 of 2002. Summary suit no.951 of 2002 was filed by the plaintiff-present respondent no.1 claiming money decree in the amount of Rs.2,50,698/- with interest. The suit is based on a final bill submitted by the plaintiff to the defendant no.1 for the work carried out by the plaintiff for defendant no.1. According to the plaintiff, the bill was certified by the Architect appointed by defendant no.1. Perusal of the affidavit filed on behalf of defendant no.1 shows that there were several defences urged on behalf of defendant no.1. It was claimed that there was no written contract between the parties. It was claimed that the claim cannot be based on the final bill certified by the Architect because the Architect was removed by defendant no.1 and he has certified the final bill after his removal. It was also urged that by notice dated 3 8.8.2000 an amount of Rs.2,14,924/- was demanded as due whereas in the suit the amount claimed is Rs.2,50,698/-. 2. We have heard the learned Counsel appearing for appellant. None appears for respondents. We have gone through the record. Perusal of the order of the learned Single Judge shows that the learned Single Judge has nowhere taken into consideration the allegations made by the defendant no.1 that the bill was certified by the Architect after his removal, and therefore, it cannot be relied on. The learned Single Judge has also not taken into consideration that by the notice given before institution of the suit, lesser amount was claimed. In our opinion, considering the defences that were raised by defendant no.1, the defendant no.1 was also entitled to unconditional leave as was granted to defendant no.2. The defendant no.2 was granted unconditional leave to defend by the learned Single Judge, though the defendant no.2 has issued one cheque in favour of the plaintiff, the finding has been recorded by the learned Single Judge that the defendant no.2 has 4 issued that cheque on behalf of defendant no.1. 3. Taking overall view of the matter therefore, in our opinion, the learned Single Judge is not justified in granting conditional leave to defend the suit to defendant no.1. In our opinion, the following order would meet the ends of justice:- The order dated 5.12.2003 passed in summons for judgment no.825 of 2002 granting conditional leave to defend the suit to defendant no.1 is set aside. Defendant no.1 is also granted unconditional leave to defend the suit. Appeal is disposed of. No order as to costs. Defendant no.1 shall file written statement within a period of eight weeks from today. (D.K.DESHMUKH, J.) 5 (A.A.SAYED,J.) ---