ash 1 sj-81.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 81 OF 2010 IN SUMMARY SUIT NO. 102 OF 2010 M/s. Shree Maheshwar Hydel Power Corporation Ltd. .. Plaintiff Vs Gorsons India Exports. .. Defendant -- Shri B.B. Nangare for the Plaintiff. Shri N. Dinkar Rao for the Defendant. -- CORAM ; A.S. OKA, J DATED : 2ND FEBRUARY, 2011 P.C. . Heard learned counsel appearing for the Plaintiff in support of the summons for judgment and the learned counsel appearing for the Defendant. 2. The suit is for recovery of the sum of Rs.9,65,800/- with interest thereon on the basis of the Memorandum of Understanding, a copy of which is annexed at Exhibit – B to the Plaint. The contention raised by the Plaintiff is that the period provided under the said Memorandum of Understanding expired on 31st August, 2009. The claim in the suit is for the refund of the security deposit paid under the said Memorandum of Understanding. One of the objections raised in the reply is that on the same cause of action, a suit was filed in ash 2 sj-81.10 September, 2009 by the Plaintiff against the Defendant in the City Civil Court where a prayer was made for declaration that the said Memorandum of Understanding had expired at the end of August, 2009. Another prayer in the said suit was for perpetual injunction restraining the Defendant from removing or disposing of or damaging the Plaintiff’s articles lying in the suit premises. The objection is that while filing the said earlier suit, leave as contemplated by Sub-Rule (3) of Rule 2 of Order II of the Code of Civil Procedure, 1908 has not been obtained. It is contended that the present suit was therefore barred. 3. Learned counsel appearing for the Plaintiff stated that subsequently the said suit was withdrawn as the Defendant permitted the Plaintiff to take away the goods. He submitted that the bar under Sub-rule (2) of Rule 2 of Order XXXVII of the Code would not apply as the earlier suit has not been decided on merits. He placed reliance on the decision of the learned Single Judge of the High Court of Himachal Pradesh in the case of Nirmala v. Hari Singh, (AIR 2001 HP 1 ). He relied upon the said judgment in support of the proposition that for applicability of the bar under Sub-rule (2) of Rule 2 of Order II of the Code, earlier suit must have been decided on merits. 4. Prima facie, it appears to me that the cause of action for filing the present suit and the cause of action for filing the earlier suit ash 3 sj-81.10 appear to be the same. In fact, in the earlier suit a declaration was claimed that the Memorandum of Understanding expired at the end of August, 2009. Relief of declaration was the substantive relief claimed in the suit. Prima facie, the cause of action in the present suit is based on the allegation that the Memorandum of Understanding expired at the end of August, 2009. Admittedly, no leave was obtained by the Plaintiffs under clause (3) of Sub-rule (2) of Order II of the Code of Civil Procedure, 1908 at the time of institution of the earlier suit or during pendency of the earlier suit. Therefore, Sub-rule (2) of Rule 2 of Order II of the said Code will have the application in the present suit. In any case, the contention raised by the Defendant as regards the bar of the suit cannot be said to be a moonshine defence. Infact, a triable issue arises on the basis of the said defence. Therefore, a case is made out for grant of unconditional leave. 5. The Summons for Judgment is dismissed by granting unconditional leave to defend the suit. 6. Written Statement to be filed within a period of three months from today. 7. The suit shall be transferred to the list of commercial causes. ( A.S. OKA, J )