1 CHS NO.1124/2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 1124 OF 2010 IN SUMMARY SUIT NO. 332 OF 2003 Esteem Projects Pvt.Ltd. ...Plaintiffs vs. International Thermal Technology Kirchner Italia Branch S.P.A., Italy ...Defendants Mr.S.L. Shah for the for the Applicants/Defendants. Mr.Cyrus Ardeshir with Mr.S.V. Uttam i/b. M/s.Pardiwala & Co. for the Plaintiffs. CORAM : R.Y. GANOO, J. DATED : SEPTEMBER 15, 2010 P.C. :- 1 The plaintiffs herein filed the present summary suit, took out the Summons for Judgment No. 259/2003. Before commencement of the hearing of the Summons for Judgment, present defendants filed an application under Section 8 of the Arbitration and Conciliation Act, 1996 (for short said Act ) for 2 CHS NO.1124/2010 referring the dispute to arbitration. That application was rejected. Appeal filed against the said order finally came to be rejected on 19th March, 2009. Thereafter, the present Chamber summons has been taken out seeking leave of the court to file affidavit-in-reply in this Summons for Judgment. 2 I have heard the learned Counsel for the parties. Once the defendants chose to file an application under Section 8 of the said Act, it was not expected of them to file any affidavit-in-reply opposing the Summons for Judgment as that would have meant that they have given up their stand with reference to Section 8 of the said Act. Hence, the defendants were justified in not filing affidavit- in-reply till 19th March, 2009. The question of delay has to be considered in the aforesaid background with reference to 19th March, 2009. An explanation has been given in the affidavit in support of the Chamber Summons explaining the delay. Frankly speaking, I am not very much impressed by the said 3 CHS NO.1124/2010 explanation. However, looking to the fact that the Summons for Judgment also did not come up on board till 19th March, 2009 in its ordinary course, the same remained pending and the present Chamber Summons taken out by the defendants pending said Summons for Judgment Looking to the fact that Summons for Judgment is pending, of course without any fault on the part of the plaintiffs, I am inclined to observe that in the interest of justice, defendants can be given a chance to file affidavit- in-reply subject, of course, to putting them to cost. I am inclined to direct the defendants to pay to the plaintiffs cost of Rs.20,000/- for granting the present Chamber Summons. I am also inclined to grant them ten days time to file affidavit-in-reply. For the reasons mentioned in the aforesaid, following order is passed :- Request of the defendants to file affidavit- in-reply is granted. The defendants to pay to the plaintiffs cost Rs.20,000/-. Cost to be paid to the 4 CHS NO.1124/2010 plaintiffs on or before 24th September, 2010. Summons for Judgment is adjourned to 4th October, 2010. The defendants to file affidavit-in-reply directly in the court on 4th October, 2010 and serve copy of the same upon Advocate for the plaintiffs on or before 27th September, 2010. The defendants will produce the proof of payment of cost while tendering the affidavit-in-reply directly in the court. (R.Y. GANOO, J.)