R. M. LODHA, J. :- The defendants are in Appeal, aggrieved by the order dated 5th September, 2005 whereby the learned single Judge directed the defendants to deposit a sum of Rs. 80 lacs in the Court within a period of8 weeks there from; failing which it was directed that the plaintiffs will be entitled to a decree. The said order came to be passed in Summons for judgment No. 242 of 1999 in summary suit filed by the plaintiffs (respondents herein).

2. The controversy arises in the circumstances that may be briefly indicated by us immediately.

3. The defendants (appellants herein) offered to purchase from the shareholders of Skyline NEPC Limited (for short 'the Company') up to 64,66,800 fully paid up equity shares of Rs. 10/- each at the rate of Rs. 35.25 per share. The said offer was to remain open on all working days from 1st February 1996 to 29th February, 1996. The plaintiffs, being the registered· owners of 3,84,500 equity shares of the Company, accepted the offer made by the defendants and after complying with all the requirements set out in the letter of offer, forwarded necessary application form to the defendants. The defendants on 22nd May, 1996, through the Registrar to the said offer, informed the plaintiffs that they had accepted the plaintiffs offer for 2,33,700 equity shares and the balance shares are being returned to the plaintiffs. It is the plaintiffs case that on 22nd May, 1996 the contract for sale of 2,33,700 equity shares between the parties stood concluded. The defendants are said to have failed and neglected to make payment. Ultimately, vide communication dated 11th November, 1996, the defendants sent 2,33,700 shares back to the plaintiffs and requested them to send the remaining shares along with the transfer deeds and formal application when they send the money of those shares to the plaintiffs. On December 03, 1996 the plaintiffs communicated to the defendants that they have accepted 2,33,700 shares without prejudice to the remedies available to them and at the risk and responsibility of the defendants. The correspondence ensued between the parties; but nothing concrete happened and that necessitated the plaintiffs to file summary suit for the recovery of the amount of Rs. 1,18,06,864.95/- together with interest on the principal sum of Rs. 82,37,925/- at the rate of 21 % per annum from the date of the filing of the suit till payment! realisation.

4. After a writ of summons was served upon the defendants, the plaintiffs took out summons for judgment, praying that the judgment be entered for the plaintiffs in the suit against the defendants for a sum of Rs. 1,18,06,864.95/together with interest on the principal of sum of Rs. 82,37,925/- at the rate of 21 % per annum from the date of filing of the suit until payment/realisation. The summons for judgment was opposed by the defendants by filing reply affidavit. Inter alia, the defendants challenged the very maintainability of the suit, as according to them, the suit did not fall within the purview of the Order XXXVII, Rule 2 of the Code of Civil Procedure. They also set up the case that company has ceased to function due to various extraneous reasons beyond the control of the defendants and the object of purchase of all the shares of the plaintiffs itself was defeated and the defendants are not at necessity to purchase the said shares and therefore, the question of plaintiffs claiming any amount from the defendants does not arise. In other words, the defendants pleaded frustration of the contract owing to the supervening event. The defendants also set up the case that the shares have already been returned by the defendants to the plaintiffs and the plaintiffs were thereafter, required to return the same along with the transfer deeds duly signed by the authorised person on or before March, 1997 and that the shares are lying with the plaintiffs and nothing is due and payable by the defendants towards the said transaction.

5. The learned motion