1 SJ128.09.sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 128 OF 2009 IN SUMMARY SUIT NO. 2985 OF 2008 Hirji Lalji Shah @ Gada. ... Plaintiff. V/s. M/s. Valkal and Ors. ... Defendants. Mr. D.H. Mehta i/b. Paras N. Vira for the Plaintiff. Mr. Sajan Oommen for Defendants 1,2 and 3. CORAM : R.Y. GANOO, J. DATED : 13th OCTOBER 2010. P.C. :- Heard learned Counsels on both sides. The Plaintiff claims that he advanced monies to Defendant No.1, a partnership firm and to Defendant Nos.2 to 4 as partners and has filed this Suit for recovery of Rs.85,000/- as set out in the plaint. 2. Summons for Judgment is not served upon Defendant No.4. Hence, it will have to be dismissed so far as Defendant No.4 is concerned. 3. It is the case of the Plaintiff that at the time of handing over monies by way of a loan, Defendant No.1 and other 2 SJ128.09.sxw Defendants had promised to execute necessary documents in favour of the Plaintiff to cover amount of loan granted to Defendant No.1. The Plaintiff had to concede that no such document has executed. 4. It is the case of the Plaintiff that in the balance-sheet as of 31st March 2002 and even thereafter, from time to time, in the statement of liabilities, the name of the Plaintiff figures as the person to whom the firm is liable to pay. According to the learned Counsel for the Plaintiff, this mention of the name of the Plaintiff as the creditor of the Defendants is an admission on behalf of the Defendants and as such, the Plaintiff is entitled to a decree at the stage of hearing of Summons for Judgment. 5. In my view, even if the name of the Plaintiff appears in the list of creditors as is contended by the Defendants that by itself will not entitle the Plaintiff to institute the Summary Suit for recovery of the said amount. In view of the above, Defendant Nos.1 to 3 who have appeared in the Summons for Judgment are entitled to un-conditional leave to defend. 6. Hence, following order is passed to dispose of Summons for Judgment :- (i) Unconditional leave is granted to Defendant Nos.1 to 3 to defend the Suit. 3 SJ128.09.sxw (ii) Defendant Nos.1 to 3 to file written statement directly in the Office on or before 11th January 2011. (iii) Defendant Nos.1 to 3 to serve copy of the same upon Advocate for the Plaintiff within 10 days from filing of the Written Statement in the Office. (iv) Summons for Judgment is dismissed for want of prosecution as against Defendant No.4. (v) Defendant No.4 to file its Written Statement on or before 11th January 2011. Copy of the same be served upon Advocate for the Plaintiff within 10 days from filing of the same in the Office. (vi) There shall be no order as to costs. (R.Y. GANOO, J.)