ssm 1 936.nms.3958.08 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 3958 OF 2008 IN SUIT NO. 1764 OF 1999 Cosmatmax Ltd and another ....Plaintiffs Versus Lufthansa Cargo India Pvt. Ltd. ....Defendant ____________ Ms. Bhakti Barve i/b. Ms. Aarti Barve for the Plaintiff to show cause. Mr. Daver i/b. RGS Lega for the Defendant in support. CORAM: R. M. SAVANT, J. DATED : 3 RD MAY, 2011. P.C.: By the above Notice of Motion, the Defendant seeks condonation of delay in filing the Written Statement and consequentially seeks the relief of setting aside of the order dated 16 th October, 2006 passed by the learned Prothonotary and Senior Master transferring the suit to the list of undefended suit and prays that its Written Statement be taken on record. The delay in filing the Written Statement is sought to be justified in the Affidavit-in- ssm 2 936.nms.3958.08 Support. The learned Counsel appearing for the Plaintiffs does not seriously oppose the relief sought in the above Motion. Though the reasons mentioned in the Affidavit, prima facie, do not commend acceptance but considering the dicta of the Apex Court that the provisions of Order VIII Rule I are directory and not mandatory and since the suit as yet has not been sets down for hearing, in my view, the interest of justice would be served if the Defendant is given an opportunity to defend the suit by filing its Written statement. 2. The Notice of Motion is accordingly allowed and made absolute in terms of prayer clauses (a), (b) and (c). The office is directed to take the Written Statement of the Defendant on record. The interest of justice would be served if the Defendant is directed to pay costs of Rs.10,000/- to the Plaintiffs within a period of six weeks from date. The payment of the said costs would be a condition precedent. Only on payment of the said costs and the Defendant producing evidence of having paid the said costs that ssm 3 936.nms.3958.08 the office would take on record the Written Statement of the Defendant on record. If the costs are not paid within the time stipulated by this Court, the benefit of this Court would not enure to the Defendant and resultantly the above Notice of Motion would be deemed to have been dismissed. 3. The above Notice of Motion is accordingly disposed of. (R. M. SAVANT, J.)