1 nms3315-08.sxw pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Notice of Motion No.3315 of 2008 in Suit No. 80 of 2007 Syndicate Bank .. Plaintiffs v/s. Mr.Umesh Champasi Nagda & Others ..Defendants Mr.Pradosh S. Patil i/b. Rajan V. Pillai for the Plaintiffs. Mr.Mohan Thakurdas Raheja for the Defendant nos. 2 and 3 in support of the notice of motion. CORAM : R.Y.GANOO, J. DATED : 9th September , 2010 P.C. : 1. This motion is taken out by defendant nos.2 and 3 for having the order dated 22.8.2008, by which the suit was ordered to be proceeded undefended, set aside. Heard learned Counsels on both sides. Affidavit in reply to this motion is not filed. Counsel for the plaintiffs opposed the submission without filing affidavit in reply. 2. The suit appeared before the Prothonotary & Senior Master on 2 nms3315-08.sxw 13.3.2008. On that day the board was discharged and thereafter the matter appeared on board on 22.8.2008 when nobody appeared on behalf of defendant nos.2 and 3 and that is why order was passed directing the suit to proceed ex-parte. There is no specific averment in the affidavit in reply that the written statement was verified on 18.5.2007. This would go to show that defendant nos.2 and 3 were attending to the matter. Learned Counsel appearing on behalf of the defendant nos.2 and 3 orally submitted without making a mention of the same in affidavit in support that on 22.8.2008 advocate appearing on behalf of defendant nos.2 and 3 was not well. In any case, I am impressed by the fact that the written statement was verified on 18.5.2007. In my view, the order dated 22.8.2008 can be set aside by putting defendant nos.2 and 3 to terms in the nature of costs. 3. In the facts and circumstances of the case, I am inclined to direct defendant nos.2 and 3 to pay costs of Rs.5000/- for having order dated 22.8.2008 set aside. 4. For the reasons mentioned aforesaid, following order is passed. 3 nms3315-08.sxw ORDER i) Upon defendant nos.2 and 3 depositing in this court Rs.5000/- ( Rupees Five Thousand Only) towards costs of this motion, defendant nos.2 and 3 are permitted to file written statement. ii) Costs to be deposited in this court on or before 27.9.2010. Defendant nos.2 and 3 to file written statement after the costs are deposited and while filing written statements defendant nos.2 and 3 shall annex proof of having deposited costs in the court and then only office shall accept the written statement. iii) Cost deposited as above shall be paid over to the plaintiffs. If the costs as above are not deposited, the written statement can’t be taken on record. iv) Motion is disposed of with no order as to costs. [R.Y.GANOO, J.]