1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.46 OF 2010 IN CHAMBER SUMMONS NO.1315 OF 2006 IN SUIT NO.2730 OF 2002 Cabot Corporation ...Appellants v/s Ajay S. Agarwal and anr. ...Respondents Ms Sneha Phene i/b M/s Little and Co. for Appellants. Mr D.R. Jhuria for Respondents. CORAM : D.K. DESHMUKH AND SMT R.P. SONDURBALDOTA JJ. DATE : 7TH JUNE 2010. 2 P.C. :- 1] Admit. Heard finally by consent of the parties. 2] By this appeal, the appellant Company, who is defendant No.2 in the suit, challenges the order dated 22nd June 2009 passed in chamber summons No. 1315 of 2006 by the leaned Single Judge of this Court. That chamber summons was taken out by the defendant No.2 for dismissal of the suit as against defendant no.2. The learned Single Judge has in the order impugned given only one reason for rejecting that chamber summons and that reason is that the chamber summons No.554 of 2005 was taken out by the plaintiffs for leave to join the present appellants as defendant No.2 in the suit. That chamber summons was granted by order dated 16th August 2005. The complaint against the order is that this objection that in view of the order dated 16th August 2005 passed in chamber summons No.554 of 2005 the present chamber summons is not maintainable was not raised 3 before the learned Single Judge by the plaintiffs. The submission of the learned counsel appearing for plaintiffs is that he had filed a further affidavit raising this objection, that further affidavit was not taken on record. The fact however remains that an affidavit raising objection to the maintainability of chamber summons for the aforesaid reason was not on record of the learned Single Judge. In our opinion, therefore, following order would meet the ends of justice. 3] The order dated 22nd June 2009 passed in chamber summons No.1315 of 2006 is set aside. That chamber summons is remitted back to the learned Single Judge for fresh consideration and decision in accordance with law. The affidavit dated 19th March 2009 of Shri A.S. Agarwal is taken on record. The defendant No.2 shall be at liberty to file reply to the said affidavit within a period of four weeks from today. The learned Single Judge shall thereafter hear the chamber summons. Appeal is disposed off. 4 Parties to act on the copy of this order duly authenticated by the Associate / Private Secretary of this Court. Certified copy expedited. (JUSTICE D.K. DESHMUKH) (JUSTICE SMT R.P. SONDURBALDOTA)