- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.840 OF 2007 IN SUMMONS FOR JUDGMENT NO.361 OF 2006 IN SUMMARY SUIT NO.1989 OF 2006 M/s.TVC Skyshop Limited. .. Appellant (Org.Defendant) Vs. M/s.Reliance Communication and Infrastructure Ltd. .. Respondent (Org.Plaintiff) -- None present for the Appellant. Ms M.V.Thakkar i/b Dave & Co. for the Respondent. -- CORAM : SRI R.M.S.KHANDEPARKAR & SRI A.V.NIRGUDE, JJ DATED : 16TH APRIL, 2008 P.C. 1. Heard. During the morning session, when none had appeared, the appeal was dismissed for default. However, at about 1.00 p.m., the learned advocate for the appellant appeared before us and submitted that he was held up in other Court and, therefore, he could not appear in the matter. Consequently the order of dismissal was recalled and the matter was fixed for hearing on admission in the afternoon session. - 2 - Accordingly the appeal was heard. 2. In the present appeal, the appellant challenges the order dated 7th November, 2006 passed in Summons for Judgment No.361 of 2006 in Summary Suit No.1989 of 2006. By the impugned judgment and order, the learned Single Judge has decreed the suit on account of failure on the part of the appellant/defendant to seek leave to defend within the prescribed period as well as there being no defence disclosed in answer to the claim of the respondent/plaintiff. 3. It is not in dispute that the appellant was duly served with the summons for judgment in relation to a summary suit filed by the respondent for a claim of amount of Rs.25,83,078.35 ps. with interests thereon. Inspite of such service of summons for judgment, the appellant/defendant did not approach the learned Single Judge to seek leave to defend the suit within 10 days from the date of service of such summons. Consequently, when the matter came up for hearing on 7th November, 2006, as no case of any sort of defence to the claim of the respondent/plaintiff was disclosed on record by the appellant/defendant, the learned Single Judge was left with no alternative - 3 - than to decree the suit in terms of the provisions of law comprised under Section 37 of the Code of Civil Procedure, 1908 and, therefore, the impugned order came to be passed decreeing the suit. Apart from contending that, already a substantial amount was deposited by the appellant in winding up proceeding and that the respondent/plaintiff has claimed compound interest, no other ground has been disclosed which could point out any infirmity or illegality in the impugned order which could justify interference of the appellate court. 4. The question of going into the infirmity or legality or illegality pertaining to the rate of interest or to what extent the amount has already been paid by the appellant would have arisen in case there was any material placed by the appellant in that regard before the learned Single Judge after obtaining necessary leave to defend the suit in accordance with the law. The appellate Court’s going into the documentary evidence, if such evidence have been found on record before the trial Court and that too without following the procedure prescribed under Order 41 Rule 27 of the Code of Civil Procedure, does not arise at all. In any case, the appellant having failed to seek leave to defend before the learned Single Judge in - 4 - accordance with the law, the question of going into various contentions sought to be raised which essentially relate to the evidence does not arise, at this stage. 5. As regards the contention that the appellant has already paid a substantial amount, nothing would prevent the appellant from bringing such fact to the notice of the Executing Court in case the respondent files an execution application in accordance with the decree passed in its favour. 6. With the above observations, as there is no case made out for interference in the impugned order, the appeal is liable to be dismissed summarily and it is accordingly dismissed, with no order as to costs. ( R.M.S.KHANDEPARKAR, J ) ( A.V.NIRGUDE, J )