1 912.nms.3178.10.sxw ata IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3178 OF 2010 IN SUMMARY SUIT NO.3936 OF 2003 V.Tribhovandas .. Plaintiff versus Ryben Pharmaceuticals and ors ..Defendants --------------------------------------- None for the Plaintiff. Ms.Bijal Gandhi and Ms.Mehrunnisa Sura for Yusufs and Associates,for the Defendants. CORAM: S.J.KATHAWALLA, J. DATED: APRIL 13, 2011 P.C. By this Notice of Motion the Defendants have prayed that the delay of 145 days in taking out the Notice of Motion be condoned and that time be extended for filing of Written Statement of the Defendants herein. 2 In the above Summary Suit , Summons for Judgment No. 886 of 2004 was taken out by the Plaintiff. By an order dated 4th October, 2005 conditional leave was granted to the Defendants to defend the Suit i.e. upon depositing an amount of Rs.5 lacs in this court within a period of four weeks from the date of the order. 2 912.nms.3178.10.sxw 3 The Defendants preferred an Appeal being Appeal No. 1156 of 2005 against the said order dated 4th October, 2005 which appeal was disposed of by an order dated 27th January,2006. By the said order , the Defendants were directed by the Appeal Court to deposit an amount of Rs.3,70,000/- by 28th February 2006. The Defendants failed to comply with the said order and an ex-parte decree came to be passed against the Defendants on 6th December, 2006. 4 The Defendants who were not aware of the said ex-parte decree having been passed on 6th December,2006 took out Notice of Motion No.512 of 2010 in the earlier Appeal No.1156 of 2005 which was already disposed of by order dated 27th January,2006 seeking extension of time to deposit the said amount of Rs.3,70,000/-. The said Notice of Motion was disposed of by an order dated 12th March, 2010 passed by the Hon’ble Division Bench directing the Defendants to deposit an amount of Rs.5 lacs (instead of Rs.3,70,000/- earlier ordered) which amount was forthwith deposited by the Defendants. Infact thereafter, the Plaintiff has taken out a Chamber Summons being No.1754 of 2010 to withdraw the said amount of Rs.5 lacs deposited by the Defendants with the Prothonotary and Senior Master, which Chamber Summons is pending till date. Pursuant to the ex-parte decree dated 6th December,2006 the Plaintiff had earlier taken out a Notice being No.1761 of 2009 under Order 21, 3 912.nms.3178.10.sxw Rule 22 of the Code of Civil Procedure,1908. When the said Notice came up for hearing before this court, the Advocate for the Defendants pointed out to the court that in view of the order passed by the Division Bench of this court dated 12th March,2010 allowing the Defendants to deposit with the Prothonotary and Senior Master an amount of Rs.5 lacs the exparte decree is set aside. The said Notice of Motion was therefore disposed of by this court after recording that since the decree has been set aside the same cannot be executed. Infact the Plaintiff has thereafter taken out the present Notice of Motion. 5 The present Notice of Motion had appeared before this court on 18th March, 2011 when the Learned Advocate appearing for the Plaintiff vehemently opposed the same on the ground that the Division Bench of this court by it’s order dated 12th March, 2010 ought not to have extended time to deposit an amount of Rs.5 lacs with the Prothonotary and Senior Master since the Defendant had taken out the Notice of Motion in an appeal which was already disposed of by an order dated 27th January, 2006. Admittedly the Plaintiff has not taken out any proceedings for setting aside the order passed by the Division Bench of this court dated 12th March, 2010. In fact the Notice of Motion taken out by the Plaintiff under order 21 Rule 22 of the Code of Civil Procedure was rejected by this court by it’s order dated 6th December,2006 which order was not 4 912.nms.3178.10.sxw appealed against by the Plaintiff. Further In December 2010 the Plaintiff himself has taken out Chamber Summons No.1754 of 2010 seeking permission from the court to withdraw the amount of Rs.5 lacs deposited with the Prothonotary and Senior Master of this court. However, since the Learned Advocate appearing for the Plaintiff sought time on the ground that the Plaintiff would like to obtain appropriate orders from the Division Bench of this court, this court only by way of indulgence adjourned the matter upto 1st April, 2011 to enable the Plaintiff to obtain appropriate orders from the Division Bench of this court. However, today when the Notice of Motion is again taken up for hearing , none appear for the Plaintiff. The Learned Advocate appearing on behalf of the Defendants states that they have not been served with any application on behalf of the Plaintiff seeking orders from the Division Bench of this court. The Plaintiff has also not filed any reply to the above Notice of Motion. In view thereof since by an order of the Division Bench dated 12th March,2010 the ex-parte decree passed against the Defendants has been set aside and the Defendants have been allowed to deposit an amount of Rs.5 lacs with the Prothonotary and Senior Master which amount the Plaintiff has sought to withdraw,for the reasons set out in the affidavit in support of the Notice of Motion, the delay is condoned and the Written Statement of the Defendants is taken on record. The Defendants shall forthwith serve a copy of the 5 912.nms.3178.10.sxw Written Statement on the Advocate for the Plaintiff. The Notice of Motion is accordingly disposed of. Since the Suit is of the year 2003, the hearing of the Suit is expedited. Place the Suit for framing of issues on 26th April, 2011. ( S.J.KATHAWALLA, J )