1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.983 OF 2007 IN SUIT NO.3944 OF 1997 M/s.Pasupati Spinning & Weaving Mills Ltd. .. Plaintiffs Versus Rajesh R. Mehra .. Defendants Mr.S.Chande for plaintiff Mr.Subhash Jha i/b. Law Global for defendant. CORAM : S.C.DHARMADHIKARI, J. DATE : 6th October 2008 P.C. . Mr.Jha learned Counsel appearing for Judgement debtor - defendant states that, without prejudice to the argument of the defendant that the writ of summons was not served, an additional affidavit will be filed pointing out as to how the suit is not maintainable under Order XXXVII and assuming it is so maintainable, the claim cannot be granted under the summary procedure as 2 there are several triable issues involved, which require complete adjudication. Thus a case for defending the suit on merits and seeking leave to so defend would also be made out by filing this additional affidavit. 2. At the request of Mr.Jha and as and by way of last chance S.O. next Monday - 13th October 2008. No further adjournments will be granted. Needless to state that if such an affidavit is not forthcoming the court will proceed to pass appropriate orders on the motion. (S.C.Dharmadhikari, J) 3 # IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.983 OF 2007 IN SUIT NO.3944 OF 1997 M/s.Pasupati Spinning & Weaving Mills Ltd. .. Plaintiffs Versus Rajesh R. Mehra .. Defendants Mr.S.Chande for plaintiff Mr.Subhash Jha i/b. Law Global for defendant. CORAM : S.C.DHARMADHIKARI, J. DATE : 14th October 2008 P.C. . This motion is moved by the defendant Rajesh Mehra who is present in court to set aside the ex parte decree dated 11th December 2002 in 4 Summary Suit No.3944 of 1997. An affidavit in support was filed wherein a plea is raised that writ of summons was not served and there is conflicting version with regard to service. Thereafter, further affidvit has been filed and it is contended that the defendant - applicant was not concerned with the day to day affairs and/or conduct of business of firm of which he is designated as a partner. He states that the entire affairs were looked after by his late father and all the transactions were also between his late father and the plaintiff. 2. After the matter was argued for some time and Mr.Jha appearing for applicant made his submissions, a suggestion was made to both sides as to whether the matter can be amicably resolved. It was suggested that if substantial sum is paid, decree can be marked satisfied and thereupon the ex parte decree need not be executed. 5 3. The adjournment were sought to arrive at a settlement. After the matter was adjourned till today, both sides made some oral submissions and ultimately left the matter to Court. 4. Accordingly, it is agreed by both sides that if the defendant - applicant pays to the plaintiff a sum of Rs.8.50 lakhs then, the said amount would be accepted in full and final settlement of the claim under the subject decree and the decree can be marked satisfied. 5. Mr.Jha appearing for defendant - applicant, after taking instructions from him makes a statement that the applicant is agreeable to this figure but require some time to make payment. 6. Even the mode of payment was an aspect left by both sides to the Court. 6 7. Thereafter, the suggestion of the court was accepted and it is agreed that if the defendant pays to the plaintiff a sum of Rs.2.50 lakhs within a period of four weeks from today and the balance sum of Rs.6 lakhs by equal monthly instalments on or before 31st August 2009, then, the decree would be marked satisfied and parties would have no claim against each other. 8. Mr.Jha on instructions makes a statement that initial deposit of Rs.2.50 lakhs would be made within four weeks from today. Needless to clarify that if there is default committed in payment of this sum, then, the benefit of this order shall be lost to the defendant and the entire decretal amount with interest would then become due and payable. Decree can then be enforced in accordance with law. Notice of motion, in that event, to stand dismissed without 7 further reference to court. 9. If this initial deposit is made, then, the balance sum of Rs.6 lakhs shall be paid in equal monthly instalments by 31st August 2009 and on receipt of the last instalment, the entire decretal amount with interest would become due and payable. Needless to state that necessary adjustments and appropriations will be made in the decretal claim. The defendants shall pay the balance sum and any default in payment of first instalment or any subsequent instalment, till the entire sum of Rs.6 lakhs which is the balance sum is paid, would entail the same consequences as listed above. 10. Notice of motion is disposed of with the aforesaid directions. 8 ( S.C.Dharmadhikari, J )