- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION NOTICE NOTICE NOTICE OF MOTION NO.3461 OF 2008 OF MOTION NO.3461 OF 2008 OF MOTION NO.3461 OF 2008 IN IN IN SUMMARY SUMMARY SUMMARY SUIT NO. 1782 OF 2005 SUIT NO. 1782 OF 2005 SUIT NO. 1782 OF 2005. Naresh Juvram Solanki. ..Plaintiff. vs. Hirabai J. Sosa. ..Defendant. AND CHAMBER CHAMBER CHAMBER SUMMONS NO.1957 OF 2007 SUMMONS NO.1957 OF 2007 SUMMONS NO.1957 OF 2007 IN IN IN EXECUTION EXECUTION EXECUTION APPLICATION NO.69 OF 2007 APPLICATION NO.69 OF 2007 APPLICATION NO.69 OF 2007 IN IN IN SUMMARY SUMMARY SUMMARY SUIT NO.1782 OF 2005. SUIT NO.1782 OF 2005. SUIT NO.1782 OF 2005. Naresh Juvram Solanki. ..Plaintiff. vs. Hirabai J. Sosa. ..Defendant. And Mrs.Pushpa H. Sosa. ..Applicant. .... Mr.Ramesh Jain, i/b. R.I.Vakil, for the Plaintiff. Mr.S.B. Prabhavalkar, for the Defendant. .... CORAM CORAM CORAM: S.J.KATHAWALLA, J. S.J.KATHAWALLA, J. S.J.KATHAWALLA, J. DATE DATE DATE : 15TH JANUARY 2009 : 15TH JANUARY 2009 : 15TH JANUARY 2009. P.C.: P.C.: P.C.: . The chamber summons is not on board. Taken on board. 2. The notice of motion is taken out by the defendant in suit to condone the delay of 335 days in taking out the present notice of motion and for setting aside the ex-parte decree dated 27th March 2006 in the above suit - 2 - and to afford an opportunity to the defendant to contest the above suit on merits. 3. After the decree dated 27th March 2006 was passed in the above suit, the premises of the defendant’s wife, Mrs. Pushpa H. Sosa were attached. The said attachment was challenged by the defendant’s wife by taking out chamber summons no.1957 of 2007. The same was dismissed vide order dated 11th August 2008. The wife of the defendant therefore preferred an appeal being appeal no.391/2008. The order of the learned Single Judge was set aside by the learned Appellate Court on condition that the defendant’s wife would deposit an amount of Rs.5,00,000/- within the stipulated period mentioned in the said order. The said amount has been deposited by the wife of the defendant in two instalments, i.e. on 3rd October 2008 and 17th November 2008. The defendant and his wife Mrs. Pushpa H. Sosa are both present in Court. 4. The following order is passed by consent of the parties :- (1) The notice of motion is made absolute in terms of prayer clauses (a) and (b). - 3 - (2) The attachment in execution application no.69 of 2007 on shop premises bearing no.8, Dhruvika Kids, ground floor, Hawkers Plaza, Senapati Bapat Marg, Dadar (East), Mumbai-400 025, stands lifted with immediate effect and the defendant is at liberty to deal with the said shop without any objection from the plaintiff in respect thereof. (3) The Prothonotary and Senior Master is directed to transfer the amount of Rs.5,00,000/- deposited by Mrs. Pushpa H. Sosa pursuant to the order in appeal no.391 of 2008 to the credit of summary suit no.1728 of 2005.The Prothonotary and Senior Master to invest the said amount of Rs.5,00,000/- in a fixed deposit of nationalised bank initially for a period of 120 days. (4) The defendant shall within a period of eight weeks from today, deposit an amount of Rs.3,00,000/- with the Prothonotary and Senior Master, which should also be credited in summary suit no.1728 of 2005. The Prothonotary and Senior Master shall invest the said amount of Rs.3,00,000/- initially for a period of sixty days in fixed deposits of any nationalised bank. - 4 - (5) The transfer of the said amount of Rs.5,00,000/- and further deposit of Rs.3,00,000/- credited in summary suit no.1728 of 2005 shall be without prejudice to the rights and contentions of the defendants that they are not liable to pay any amount/s to the plaintiffs in the above suit. (6) In the event, the defendant and the applicant fails to deposit further amount of Rs.3,00,000/- within the stipulated period of eight weeks from today and/or within such extended period, a decree in terms of prayer clause (a) of the summary suit no.1728 of 2005 shall follow and the plaintiff herein would be entitled to withdraw the amount deposited by the defendant in the said summary suit after obtaining permission of this Court in part execution of his claim in the said suit. (7) If the amount of Rs.3,00,000/- is deposited by the defendant, as above, the plaintiff shall be entitled to take out the summons for judgment in the summary suit which shall be disposed of expeditiously and if possible, within a period of three months from the date of the said summons of judgment. - 5 - (8) The Vakalatnama filed by the Advocates for the defendants in the notice of motion shall be treated as Vakalatnama of the defendants’ Advocates in the suit. (9) The parties are at liberty to apply for further directions, if any, after the defendants deposits the further amount of Rs.3,00,000/- in the account of summary suit no.1728 of 2005. (10) The notice of motion is accordingly disposed of. (11) In view of the above, the chamber summons no.1957 of 2007 also stands disposed of. [S.J.KATHAWALLA, [S.J.KATHAWALLA, [S.J.KATHAWALLA, J.] J.] J.]