1 mpt IN THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDEMENT NO. 373 of 2007 IN SUMMARY SUIT NO. 1630 of 2007 Stone Shippiers Ltd. .. Plaintiff versus M/s.Dandeli Timber Trading Co. & ors.. Defendants ... Mr.M.A. Shah for the plaintiff. Mr.Rajesh N. Kachare for defendant nos.1, 2, 3, 5 and 6. CORAM : D.G. KARNIK, J DATED : 29th April 2009 P.C.: 1. Heard learned counsel for the plaintiff and defendant nos.1, 2, 3, 5 and 6. 2. At the outset, learned counsel for the 2 plaintiff submitted that the Summons for Judgement is not directed against the defendant no.4 and no relief is claimed against defendant no.4 in this Summons for Judgement. 3. In my view, triable issues arise and the defence raised by the defendants cannot be said to be frivolous or illusory for the reasons briefly indicated below. 4. The defendant no.1 is a partnership firm and defendant no.2 to 6 are stated to be its partners. The original plaintiff is also a partnership firm. Under a Memorandum of Understanding dated 5th June 2004 executed between the original plaintiff - partnership firm and the defendants, they agreed to sell and assign their leasehold right in respect of the properties situated at MIDC Thane. The original plaintiff paid to the defendant a sum of Rs.25,00,000/- towards part of the price. The contract could not be performed because of an objection taken by heirs of one of the partners who had died. According to the plaintiff, an oral understanding was reached between the original plaintiff and the defendants under which the defendants agreed to repay Rs.25,00,000/- The defendants repaid Rs.16,00,000/- and remaining 3 amount of Rs.9,00,000/- has not been repaid. The suit was therefore filed by the original plaintiff for recovery of Rs.9,00,000/- and interest thereon. The plaint was subsequently amended and the present plaintiff which is a limited liability company was substituted in place of original plaintiff. It was averred that the assets of the original plaintiff - partnership firm was taken over by the present plaintiff and therefore present plaintiff has a right to sue. Admittedly, there is no written contract between the present plaintiff and the defendants. Suit is therefore not covered by Rule 1 of Order 37 of the Code of Civil Procedure. 5. Even though the original contract for sale/assignment of the lease deed was in writing that contract admittedly ceased to exist on account of the objection by one of the partners of the defendant no.1 firm. Fresh understanding (oral contract was reached between the parties whereby the defendants agreed to repay the money. This contract is an oral contract and the suit is for enforcement of this oral contract. The present plaintiff is also not a party to the said oral contract but only an assignee of the original plaintiff. 6. Plaintiffs have claimed interest. There was 4 no agreement to pay interest. The claim of interest is therefore not sustainable on the basis of any written contract. 7. For these reasons, defendant nos.1, 2, 3, 5 and 6 are granted unconditional leave to defend the suit. Suit shall stand transferred to the list of commercial causes. Defendants shall file written statement within 10 weeks. (D.G. qARNIK, J)