1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5753 OF 2009 M.M.Shah Consultants Ltd & Anr. .. Petitioners versus Purushottam Mukunddas Lohia .. Respondent Mr.G.H.Keulskar for the petitioners. Mr.S.N.Chandrachood for the respondent. CORAM : A.S.OKA, J. DATE : 11th September 2009. P.C.: . Rule. The learned advocate for respondent waives service. Taken up for final disposal at admission stage by consent of the parties. 2. The respondent filed a summary suit by invoking Rule 2 of Order XXXVII of the Code of Civil Procedure, 1908. An application for leave to defend the suit was made by the petitioner. By the impugned order dated 21st April 2009, the learned trial Judge granted leave to defend to the petitioner subject to petitioner depositing a sum of Rs.1,00,000/- with the trial Court. 3. Perusal of the impugned order shows that the learned trial Judge has dealt with the application for leave to defend the suit in most unsatisfactory manner. Though the trial Court has referred to the decision of the Apex Court in the case of M/s.Mechalec Engineers and Manufacturers Vs. 2 M/s.Basic Equipment Corporation (AIR 1977 Supreme Court STI), the trial Court has not even applied its mind to the nature of the defence raised by the petitioner. The trial Court has not considered whether there is any plausible defence. In fact no reasons have been assigned for grant of conditional leave to defend. The learned counsel appearing for the respondent submitted that the petitioner has been convicted for the offence under section 138 of the Negotiable Instruments Act, 1881. On the face of the impugned order I find that there is a complete non application of mind by the learned trial Judge. Only after examining the factual aspects in the light of the law laid down by the Apex Court, the trial Court has to consider whether a case is made out for grant of leave or conditional leave. In the circumstances, the only option left before this Court is to pass an order of remand directing the trial Court to decide the application for grant of leave to defend. Hence, I pass the following order: : O R D E R : (a) The impugned judgment and order dated 21st April 2009 is quashed and set aside and the application for leave to defend made by the petitioner at Exhibit 16 is restored to the file of the trial Court. (b) The trial Court will decide the said application afresh in accordance with law. (c) The application shall be decided as expeditiously as possible and preferably within a period of eight weeks from the date on which authenticated copy of this order is produced before the trial Court. 3 (d) All contentions of the parties on merits are expressly kept open. (e) The writ petition is partly allowed on above terms. (A.S.OKA,J)