-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 304 OF 2009 IN SUMMONS FOR JUUDGMENT NO. 269 OF 2007 IN SUMMARY SUIT NO. 1286 OF 2007 Rakesh Upadhyay ...Appellant versus Manish Shah ...Respondent Mr. N.C. Parikh, instructed by M/s. Mansukhlal Hiralal & Co., for the appellant. Mr. G.B. Kedia for the respondent. CORAM: P.B. MAJMUDAR & R.V. MORE, JJ. DATE: NOVEMBER 30, 2009. P.C. With the consent of the learned counsel appearing for the parties, Appeal is taken up for hearing forthwith. By this appeal, the appellant has challenged the order dated 5th March, 2009, passed by the learned single Judge in Summons for Judgment No. 269 of 2007 in Summary Suit No. 1286 of 2007. By the impugned order, the learned single Judge decreed the suit on the ground that even though the Summons for Judgment had been served upon the advocate for the defendant, no affidavit-in-reply had been filed. -2- 2. At the time of hearing today, since both the sides agreed that the impugned order may be set aside by directing the appellant to deposit Rs. 25,17,151.30 and file appropriate reply/written statement before the learned single Judge. In view of the aforesaid, it is not necessary to give detailed reasons and with the consent of both sides, the following order is passed. (i) The impugned order is set aside on condition that the appellant shall deposit Rs. 25,17,151.30 within a period of three months from today before the Prothonotary and Senior Master of this Court in Summary Suit No. 1286 of 2007. (ii) On such deposit, the Prothonotary and Senior Master may invest the amount initially for a period of three years in a fixed deposit which can be renewed from time to time till the decision of the suit. (iii) The appellant shall file appropriate reply/written statement within a period of three weeks from today and thereafter the learned single Judge may dispose of the whole suit within a period of two years thereafter. (iv) The appellant is accordingly granted leave to defend the suit on aforesaid condition of depositing the entire amount as aforesaid. (v) In case the amount as ordered is not deposited, the Appeal shall stand dismissed as deposit is a condition precedent. (vi) It will be open to the plaintiff to apply before the learned single Judge for withdrawal of the amount. On this aspect, we are not expressing any -3- opinion. It is for the concerned learned single Judge to consider the same in accordance with law. (vii) The appellant is directed to pay cost of Rs. 5,000/- to the respondent. Cost to be paid within a period of two weeks from today. 3. Appeal is accordingly disposed of in the aforesaid lines. P. B. MAJMUDAR, J. R.V. MORE, J.