1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3206 OF 2009 IN SUIT NO.4351 OF 1996 Kamal Organic Chemicals .. Plaintiff Versus Sunil B. Bhosale .. Defendant Ms.Anita Castellino with Anoop Sharma i/b. S.M.Kazi for plaintiff Mr.A.A.Kumbhakoni with T.D.Deshmukh i/b. Mandar Soman for defendant. CORAM : S.C.DHARMADHIKARI, J. DATE : November 13, 2009. P.C.: 1] Perused the notice of motion and the affidavit in support and reply. 2] It is stated that this suit was decreed by the Court ex parte. The application is to set aside this ex parte decree. The defendant was unaware of the decree until the attachment notice came to be served. That demonstrates that he became aware of an ex parte decree dated 23rd August 2007 for the first time in March 2009. In the result, there is a delay of about 750 days in making an application to set aside the decree. 2 3] Even on 2nd March 2009, what the defendant became aware of was service of an attachment notice. He was at that time not in India. Upon his return to India on 26th March 2009, that he became aware of the decree. 4] This reason and explanation in paras 2 and 3 of the affidavit in support is countered by the plaintiff’s Advocate by urging that the defendant had knowledge of institution of the suit. He had engaged an Advocate who undertook to file vakalatnama and waived service of the writ of summons on his behalf. In these circumstances, the explanation as offered is not genuine and lacks in bonafides. 5] After the matter was argued for some time and upon a query from the Court as to how the knowledge of the suit could be said to be relevant factor for condoning delay in making an application to set aside the ex parte decree, the Counsel for plaintiff found it difficult to sustain this objection. Save and except urging that the same shows lack of bonafides, she could not point out anything else. Even otherwise, the delay cannot be said to be such as would totally put the defendant out of Court. The 3 decree has been passed on 23rd August 2007. The attachment notice is of 2nd March 2009. Earlier application was made by way of chamber summons, which was found to be not maintainable and therefore, withdrawn with liberty to file appropriate proceedings. In such circumstances, I find from the record that this delay has been explained satisfactorily. It deserves to be condoned in the larger interest of justice and it is accordingly condoned, by making the notice of motion absolute in terms of prayer clause (a). However, defendant shall pay costs occasioned by the delay and quantified at Rs.5000/-. Costs be paid to plaintiff’s Advocate within a period of two weeks from today. (S.C.DHARMADHIKARI, J)