1 sj154-09.sxw pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Summons for Judgment No. 154 of 2009 . in Summary Suit No. 3167 of 2008 Parag Vipin Shah .. Plaintiff v/s. Paresh Banker ..Defendant Mr.P.S.Gidwani for the Plaintiff. Mr.Shanti Bhushan Nirmal for the Defendant CORAM : R.Y.GANOO, J. DATED : 16th December , 2010 P.C. : 1. Heard counsels on both sides. Plaintiff claims to be owner of certain shares described in the plaint. According to him, in January 2005, the defendant approached the plaintiff and requested the plaintiff to deposit with the defendant certain quantity of shares to enable the defendant to use the said shares for arbitrage/ auction or use the same upto June 2008. Plaintiff claims that defendant had promised to pay to the plaintiff certain amount by way of commission. The transaction in detail is set out in paragraph 2 of the plaint. Present 2 sj154-09.sxw suit is filed by the plaintiff for recovery of the amount as the defendant has sold certain quantity of shares and has caused loss to the plaintiff in terms of said shares. 2. After having perused the entire record, I am inclined to observe that institution of the present suit as Summary Suit is not maintainable. The plaintiff has not been able to produce any written agreement manifesting the terms set out in paragraph 2. Even otherwise, looking to the entire nature of the transaction alleged in the plaint, the present suit does not fall within the ambit of Order 37 Rule 1 of CPC. That is to say pre condition for filing of the suit as set out in Order 37 Rule 1 of CPC are not complied with. In view of this, filing of this suit as summary suit was not permissible. On this count itself the defendant is entitled to unconditional leave to defend. Hence following order is passed to dispose of the summons for judgment. ORDER i. Defendant is granted unconditional leave to defend the suit. ii. Defendant to file written statement in the office on or before 3 sj154-09.sxw 10.2.2011. iii. Defendant to serve copy of the written statement upon the advocate for the plaintiff within 10 days from filing of the written statement in the office. There shall be no order as to costs. [R.Y.GANOO, J.]