1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.300 OF 2008 IN SUMMONS FOR JUDGMENT NO.189 OF 2004 IN SUMMARY SUIT NO.145 OF 2004 M/s.Pradeep Kayan & Co. & Ors. .. Appellants V/s Sunbhakti Trading Co.Pvt.Ltd. .. Respondent Mr.Snehal Shah with Mr.K.H.Mody & Ms.Nina Kapadia i/by M/s.Pandya Gandhi & Co.for the Appellants. Mr.Kamal Khata i/by Mr.Akshay Wani for the Respondent. CORAM: D.K.DESHMUKH & R.G.KETKAR, JJ. DATE: 26th July, 2011. P.C.: 1. By this appeal, the Appellants who are original Defendants in the Summary Suit No.145 of 2004 have challenged the order dated 11.07.2007 passed in the Summons for Judgment No.189 of 2004 by the learned Single Judge of this Court. By that order the learned Single Judge has held that the Defendants have no defence to the suit. Therefore, the Summons for Judgment has been made absolute and the suit has been decreed. 2. We have heard learned counsel for both sides. According to the 2 learned Single Judge, the suit was based on the balance confirmation, which according to the learned Single Judge was signed by the Defendants. The balance confirmation even according to the plaintiff was for the accounting year 2000-2001. The learned Single Judge has recorded a finding that this balance confirmation for the year 2000-2001 was received by the plaintiff from the Defendants in the month of August 2001. 3. Learned counsel appearing for the Defendants submits that in the Plaint there is no averment as to on what date and month the plaintiff received this alleged balance confirmation from the Defendants. The learned Single Judge however has recorded a finding that this balance confirmation was received by the plaintiff in the month of August 2001. 4. We therefore asked learned counsel for the plaintiff as to what is the basis for this finding recorded by the learned Single Judge. He however could not point out any document on record in support of this finding. Learned counsel submits that there were certain e- mails which were produced before the learned Single Judge across the bar which showed that the balance confirmation for the year 2000-2001 was received by the plaintiff in the month of 3 August 2001. Admittedly, those e-mails are not on record and were never filed on record by the plaintiff. What is pertinent to be noted is that the other findings recorded by the learned Single Judge in relation to the correspondence between the parties, are based on the finding recorded by the learned Single Judge that the balance confirmation for the year 2000-2001 was received by the plaintiff in the month of August 2001. If it is held that the plaintiff has not been able to establish the date on which this balance confirmation for the year 2000-2001 was received by the plaintiff, the entire correspondence has to be read in a totally different light. What is further to be seen is that the finding of the learned Single Judge that from the correspondence between the parties it appears that the Defendants are not right in contending that they have not signed the alleged balance confirmation for the year 2000-2001 is also based on the finding that the balance confirmation for the accounting year 2000-2001 was received by the plaintiff in the month of August 2001. It is apparent from the order that the Defendants were denying their signatures on the balance confirmation and the finding has been recorded by the learned Single Judge that the balance confirmation for the year 4 2000-2001 was signed by the Defendants by comparing the signatures of the Defendants on that letter with the other signatures of the Defendants. 5. In our opinion, if the signatures were disputed by the Defendants, and as there was no exact date of balance confirmation available on record, the learned Single Judge should have granted conditional leave to the Defendants to defend the suit. Perusal of the record reveals that the Defendants themselves had written a letter dated 20.05.2003 agreeing to pay an amount of Rs. 4,26,281.65 to the plaintiffs after adjusting what according to the Defendants was the sale proceeds of the shares. In our opinion, therefore, the following order would meet the ends of justice:- (i) The order impugned in this appeal is set aside. Defendants are granted leave to defend the Summary Suit No.145 of 2004 subject to the condition that the Defendants, within a period of eight weeks from today, deposit an amount of Rs.4,26,281.65 together with interest @ 12% p.a.from 31.03.2001 till the date of deposit, with due intimation to the plaintiff. (ii) On the amount being deposited, suit be transferred to 5 commercial cause for trial. (iii) Written statement to be filed within a period of eight weeks from the date of deposit. (iv) On the amount being deposited, the Prothonotary & Sr.Master shall permit the plaintiff to withdraw the amount on an undertaking to this Court to bring back the amount if so directed by this Court and on such terms and conditions as may be directed. (v) Appeal stands disposed of in the above terms. (R.G.KETKAR, J.) (D.K.DESHMUKH, J.)