1 SJ65.09.sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 65 OF 2009 IN SUMMARY SUIT NO. 2936 OF 2005 Rathikant Basu. ... Plaintiff. V/s. Eternal Dreams Pvt. Ltd. & Ors. ... Defendants. Mr. Vishal Kanade i/b. Anil Menon & Associates for the Plaintiff. Mr. Swapnil Bangur i/b. Deven Dwarkadas & Partners for Defendants 1 to 3. CORAM : R.Y. GANOO, J. DATED : 06th OCTOBER 2010. P.C. :- The Plaintiff claim that he had in all advanced a sum of Rs.67,96,000/- and odd amount to Defendant No.1 on the strength of agreement dated 18th April 2002. Promissory note dated Nil to the tune of Rs.21,90,000/- is relied upon in support of the first installment of loan and second installment of loan is to the tune of Rs.21,90,000/- for which no documentary evidence is produced. 2. The learned Counsel for the Plaintiff relied upon letter dated 29th October 2002 addressed by Defendant No.3 – Director of Defendant No.2 admitting receipt of certain loan 2 SJ65.09.sxw from the Plaintiff. 3. In the plaint at paragraph 8 there is a specific averment that the loan liability which was once upon a time to be defrayed by Defendant No.1 is taken over by Defendant No.2 that is to say the Plaintiff admits that Defendant No.2 is liable to pay loan which was granted to Defendant No.1. So far as Defendant No.3 is concerned, she is the Director of Defendant no.1 and clause 8 of the agreement dated 18th April 2002 is relied upon where there is a reference to Defendant No.3 standing as guarantor. Despite this clause 8, no separate document of guarantee executed by Defendant No.3 is relied upon. In order to recover monies from Defendant No.2, the Plaintiff has filed Company Petition No.614 of 2005 and the Court is informed that the dispute is referred to an arbitration. 4. After having considered the aforesaid factual aspect and in particular, paragraph 8 of the plaint, the Plaintiff has admitted that the Plaintiff is looking to Defendant No.2 for the repayment of the loan which was once upon a time granted to Defendant No.1. In view of this, unconditional leave is required to be granted to Defendant No.1. 5. Since proceedings came to be filed to recover monies from Defendant No.2 in so far as this Suit is concerned, Defendant No.2 is entitled to unconditional leave. 3 SJ65.09.sxw 6. Defendant No.3 is the Director of Defendant No.1. Even if it is accepted for a moment that Defendant No.1 is liable, still Defendant No.3 as a Director would not be liable. No document is produced to show that Defendant No.3 is guarantor. No deed in the nature of a guarantee deed is produced purported to have been signed by Defendant No.3. If this is so, Defendant No.3 is also entitled to unconditional leave. 7. In view of this, following order is passed to dispose of the Summons for Judgment :- (i) Unconditional leave is granted to Defendant Nos. 1,2 and 3 respectively. (ii) Each of the Defendant to file written statement directly in the Office on or before 30th November 2010. (iii) Each of the Defendant to serve copy of the written statement upon Advocate for the Plaintiff within 10 days from filing of the written statement in the Office. (iv) There shall be no order as to costs. (R.Y. GANOO, J.)