1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 1010 OF 2010 IN SUMMARY SUIT NO. 104 OF 2009 Miss. Divya Kohli. ... Plaintiff. V/s. Mr. Gopal R. Naik. ... Defendant. Mr. I.J. Nankani with Jagdish Choudhary i/b. Nankani & Associates for the Plaintiff. Ms. Shah with Meena A. Ruparel for the Defendant. CORAM : R.Y. GANOO, J. DATED : 15th APRIL 2010. P.C. :- This Motion has been taken out by the Defendant so as to seek condonation of delay of 191 days in depositing the amount pursuant to order dated 2nd July 2009 and to deposit money in this Court within a period of 12 weeks. 2. Parties have completed the pleadings. I have heard the learned Advocates on both sides. 3. The Plaintiff had filed this Summary Suit and on 2nd July 2009 on the Summons for Judgment, an order was passed directing the Defendant to deposit in this Court a sum of Rs. 2 28,25,000/- within a period of 12 weeks, that the time to deposit the monies ended on 24th September 2009. The Defendant did not deposit the monies in time and this Motion has been taken out in March 2010. 4. I have heard learned Advocates on both sides. The Defendant in the affidavit in reply claims that he has been suffering from diabetes and has not been attending his practice regularly. Though this is stated in paragraph 4, in paragraph 5 of the affidavit in support he says that he had to attend certain income tax cases because the Defendant is the Chartered Accountant by profession. A reading of the record of this Notice of Motion clearly indicates that it is not the case of the Defendant that the Defendant was so financially weak that he could not deposit the amount as ordered by the Court. The Defendant claims that he is a practicing Chartered Accountant as well as he was prevented from depositing the money because of the sickness. It is to be noted that he is represented by the Advocate. He should have delivered the cheque to the Advocate who could have deposited the cheque within time. 3 5. The provisions of Section 148 and Section 151 of C.P.C. were brought to my notice and it was urged that this Court can exercise discretion and pass an order. 6. Learned Advocate for the Plaintiff tried to submit that the Defendant was indolent and no discretion should be exercised in favour of the Defendant and that the Suit be set down for passing an ex-parte decree by dismissing the Notice of Motion. 7. After having perused the Notice of Motion, I am inclined to observe that this is the case where the Defendant neglected his duty to deposit the amount. In my view, the interest of justice would be met if for extension of time which is sought in the Notice of Motion, the Defendant can be put to terms and an additional amount can be directed to be deposited by the Defendant to secure the relief in this Notice of Motion. The Defendant was directed to deposit approximately 50% of the total claim that is the total claim is in the vicinity of Rs.60,00,000/-. Looking to the respective figures, it would be proper if the Defendant is directed to deposit an additional sum of Rs.5,00,000/- for the purposes of 4 condonation of delay in depositing the monies. Needless to mention that the Defendant will have to deposit the main amount viz. Rs.28,25,000/-. Looking to the fact that the Defendant will have now to deposit about Rs.33,25,000/-, some time will have to be given and that is how I am inclined to fix the said date namely 18th June 2010. Hence the order :- For seeking extension of time to deposit the monies, the Defendant is directed to deposit a sum of Rs.5,00,000/- in addition to Rs.28,25,000/- that is to say the Defendant is hereby directed to deposit in this Court a sum of Rs.33,25,000/- on or before 18th June 2010. If the Defendant does not deposit this amount of Rs. 33,25,000/-, as above, the Suit to appear on Board on 23rd June 2010 for ex-parte decree. This order has no connection with earlier order by the Defendant had to deposit Rs.1,00,000/-. (R.Y. GANOO, J.)