1. Rule.

2. Rule made returnable forthwith. With consent of the learned counsel for the Parties, matter is taken up for final hearing.

3. To state in brief, the petitioner filed summary suit no.33 of 2006 against the respondents for recovery of certain amount. According to the petitioner, the respondent no.1 is a education trust of which the respondent no.3 is a chairman and the respondent no.2 is a partnership firm of which the respondent no.3 is a partner. The respondent nos.1 and 2 are under the control and management of the Respondent No.3. All activities including financial activities of the respondent nos.1 and 2 are exclusively run and conducted by the respondent no.3. For raising constructions of a huge project at village: Dugaon, Taluka and District: Nashik for the purpose of school and educational academy, Respondent No.3 for the Respondent No.1 approached the Petitioner for purchase of steel. Petitioner according supplied the steel at the site of the defendants from November, 2004 to March, 2005. It was agreed between the parties that bill raised by the petitioner has to be cleared and paid within thirty days and in case of delay in payment by the respondents, delay charges of Rs.500/- per tonne per month would be paid by the respondents. Total supplies under 55 different bills were worth Rs.1,96,10,431/-. Debit notes were also issued for delay payment for an amount of Rs.15,76,645/-. The respondents made payment of Rs.1,48,64,483.00 by different cheques towards price of steel. The respondent no.2 issued a cheque no.167547 dated 25.4.2005 for amount of Rs.48,01,029.00 drawn against Punjab National Bank branch towards the payment dues on account of supply of steel. Cheque was signed by the respondent no.3 as a partner of the respondent no.2 and the respondent no.1 confirmed, by the letter dated 2.5.2005, also issued under the signature of the respondent no.3, that the said cheque was issued for the payment due for the supply of steel at their Dugaon site. Initially, the respondent no.1 had some doubts about the delay payment charges but after some correspondence, the respondent no.1 confirmed that rate of delay payment charges should be at the rate of Rs.500/- per ton for delay of every thirty days. By letter dated 2.5.2005, the respondent no.1 informed the petitioner that the date when the cheque may be presented for the encashment would be informed on 4th May, 2005 latest by 2.30 p.m. By letter dated 4-5-2005, the respondent no.1 requested the petitioner to deposit the said cheque with bank for payment. According to the petitioner, the cheque was presented but was dishonoured. Thereafter, again it was presented on 25.10.2005 but again it was dishonoured for want of sufficient funds. On 23.11.2005 petitioner issued notice to the respondents in this respect and the said notice was replied on behalf of all the respondents but as the respondents failed to make the payment, Summary Suit No.33 of 2006 was filed, which is based on the said cheque, written contract, orders and correspondence and bills in writing.

4. In response to the notice, the respondent no.2 appeared and made an application seeking leave to defend the suit contending that the defendant/respondent no.2 had no privity of contract as far as the contract for supply of steel is concerned and it would not be liable to pay the amount to the petitioner. Defendants/respondent nos.1 and 3 also moved an application seeking leave to defend the suit. According to them, the suit is based on the cheque, which was allegedly issued by the respondent no.2 and, therefore, they have been unnecessarily impleaded in the suit. Besides this, the respondents have contended that the suit is not tenable as summary suit. It was also contended that the petitioner claims to be Hindu Undivided Family but it has not disclosed the names of members of Hindu Undivided Family and on