:1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION NOTICE NOTICE NOTICE OF MOTION NO. 1615 OF 2007 OF MOTION NO. 1615 OF 2007 OF MOTION NO. 1615 OF 2007 IN IN IN SUIT SUIT SUIT NO. 1584 OF 1988 NO. 1584 OF 1988 NO. 1584 OF 1988 The Board of Trustees of the Port of Bombay. ... Plaintiffs. V/s. M/s. Polychem Industries. ... Defendants. Mr. U.J. Makhija with Ms. Manji i/b. Motiwalla & Co. for the Plaintiffs. Mr. P. Palkhiwala i/b. Raj Baid for the Defendants. ..... CORAM CORAM CORAM : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. 22ND 22ND 22ND OCTOBER 2008. OCTOBER 2008. OCTOBER 2008. P.C. P.C. P.C. : : : . This is a motion to set aside an ex-parte decree in the above suit. 2. In the affidavit in support filed by the sole proprietor of the Defendants it is stated that the Suit is filed for recovery of a sum of Rs.4,01,237.29 including interest. The claim is towards Port Trust charges and other dues. 3. The Defendants were a partnership firm consisting of the father Parmanand Agarwala and son Vinod Agarwala. :2: 4. There were three Suits filed against Defendants by the Bombay Port Trust. One was filed in the City Civil Court, Bombay and two were filed in this Court. After the case on merit is set out, it is contended that the Defendants received the Writ of Summons in the three Suits including one which has been decreed and they engaged an Advocate. It is stated by the father that the son Vinod was stationed at Bombay and was looking after the three Suits. He retired from the firm on 1st April 1992 and later on continued to act as Manager. It is contended that in the year 1997-1998 the son forwarded some files to the Deponent and that is how he realized that the two Suits have been withdrawn in 1987. However, a letter dated 14th March 2007 from the Plaintiffs was received under which the decretal claim was directed to be paid. On receipt of this letter at Kolkata on 21st March 2007 that decretal claim came to the knowledge of the Defendants. 5. There is an explanation given in paragraphs 11 and 12. The explanation seems to be that since other Suits were withdrawn, the Defendant was under at bona-fide belief that the present Suit also would not be proceeded with. That apart, the Advocate engaged by the Defendants was later on elevated as a Judge of this Court and in such circumstances, the Written Statement could not be filed. 6. Mr. Makhija, learned Advocate appearing for the :3: original Plaintiffs contended that the Notice of Motion is not maintainable as the decree is passed for want of written statement and after evidence was led by the Plaintiff. The Plaintiff’s witness was not cross-examined and that is how the un-rebutted testimony came to be accepted and decree is passed. This is a decree passed not for want of appearance but for want of defence and on satisfaction that the claim is proved. Such a decree cannot be set aside by the instant motion and the remedy is to file an appeal. 7. For all these reasons and even otherwise it is contended by Mr. Makhija that this is not a fit case to condone the delay and set aside the decree passed in the suit instituted in 1988. 8. Admittedly, the Suit filed is to recover monies. Admittedly, the Writ of Summons was duly served but after entering appearance, no steps were taken by the Defendants and there is no Written Statement on record. A perusal of the decree and the order preceding the same would reveal that this Court proceeded in the absence of the Defendant so also in the absence of any defence. In the larger interest of justice, I am not entering into a controversy about the maintainability of the instant proceedings. This Court can in appropriate cases, after perusing the record proceed on the basis that the decree is passed also because the Defendant was absent after the Writ of Summons :4: entertain an Application for setting aside the same although, appearance was entered by the Defendant and no steps were taken. There is no necessity of construing the words "want of defence or want of appearance" in these peculiar facts. I am proceeding on the basis that such decree can also be set aside by this Court after imposing appropriate conditions. The law on the point is very clear. The conditions imposed should not be onerous or excessive or such as would make it impossible for the parties to defend themselves. The Supreme Court has set aside imposition of terms and conditions including deposit of entire decretal amount by terming them as arbitrary and excessive so also onerous. I am, therefore, aware of the fact that such conditions cannot be imposed. However, in the peculiar facts of this case when the Suit was filed in the year 1988 and no steps were taken to place the written statement on record till date and the claim being a money claim, interest of justice would be sub-served if the following order is passed :- (a) On the Defendant depositing a sum of Rs.4.00 lakhs in this Court within a period of 16 weeks from today, the decree passed shall stand set aside provided however, that the Defendant takes steps and files the written statement within eight weeks from the date of deposit of the monies by them. (b) The monies thereafter be invested by the :5: Prothonotary and Senior Master initially for 36 months in Fixed deposit with a Nationalised Bank. In default, the decree stands and the Notice of Motion shall also stand dismissed without any further reference to the Court. (c) In the peculiar facts of this case, I am not imposing any cost on the Defendant, more particularly considering that he is a senior citizen. 9. The Motion is disposed of accordingly. (S.C. (S.C. (S.C. DHARMADHIKARI,J.) DHARMADHIKARI,J.) DHARMADHIKARI,J.)