: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.92 OF 2009 M/s.Shirin Co-operative Housing Society Ltd. ...Appellants Ori.Defts. Versus M/s.Tardeo Properties Private Limited ...Respondents Ori.Plffs. ...... Mr.K.C.Mehta for Appellants. Mr.Vaibhav Sugdave with Ms.Janhvi Durve i/b M/s.K.Ashar & Co. for Respondents. ...... CORAM : A.M.KHANWILKAR, J. DATED : AUGUST 27, 2009. P.C. : 1. Heard Counsel for the parties. 2. This Appeal takes exception to the Judgment and Order passed by the City Civil Court at Mumbai dated 9th July 2008 in Notice of Motion No. 361 of 2008 in S.C.Suit No.709 of 1993. The City Civil Court rejected the Notice of Motion taken out by the Defendants for setting aside of ex-parte decree dated 21st November 1998. It is not in dispute that the said Application was filed only on 18th February 2008. The explanation offered : 2 : by the Defendants was that the Defendants were not informed by the Advocate who was in-charge of the proceedings about the ex-parte decree passed on 21st September 1998. It is thus argued that for the mistake of the Advocate, the litigants should not suffer. 3. Ordinarily, this argument will have to be well accepted. However, in the present case, the Court below has found as of fact that the Plaintiffs had sent intimation about the ex-parte decree to the Defendants under letters dated 16th March 1999 and 30th April 1999. Insofar as letter dated 16th March 1999 is concerned, the Plaintiffs also produced Certificate of Posting of having sent the said letter to the Defendants. On that basis, the City Civil Court proceeded to hold that there is presumption as to delivery of the said letter to the addressee thereof. In view of this finding, the plea taken by the Defendants that their Advocate failed to inform about the ex-parte decree, cannot be countenanced. However, to get over this position, it is argued before this Court that Defendants had filed affidavit of Mr.Kachralal Ramanlal Doshi dated 10th July 2008 in which it has been categorically asserted that neither the letter dated 16th March 1999 nor 30th April 1999 was received by the Defendants. However, the argument clearly overlooks the fact that there is no assertion in this affidavit that the said Kachralal : 3 : Ramanlal Doshi had personal knowledge about the fact which existed in September 1998 or for that matter, about the service of communications dated 16th March 1999 and 30th April 1999. According to the Defendants, the concerned Secretary has died sometime back. That did not prevent the Defendants to file affidavit of any other office bearer of the relevant period or for that matter the clerk or Manager of the Defendants to assert the position stated in the affidavit of Kachralal Ramanlal Doshi. In other words, Kachralal Ramanlal Doshi has had no personal knowledge of the fact asserted by him, for which reason, his affidavit will be of no avail. 4. In my opinion, therefore, no fault can be found with the view taken by the City Civil Court in rejecting the Application for setting aside the order filed by the Appellants. Therefore, Appeal fails. The same is dismissed. A.M.KHANWILKAR, J.