1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTIC OF MOTION NO. 2855 OF 2008 IN SUIT NO.1901 OF 1991 Concept Developers ...Plaintiffs Vs. Shankar Chandrakant Dhru & Ors. ...Defendants Mr. Deepak Chitnis for Plaintiffs Mr. Uday Warunjikar for Defendants 4 & 13 CORAM: SMT.ROSHAN DALVI, J. DATED: 20 TH FEBRUARY , 2009 P.C. 1. This Suit has been filed for specific performance of an agreement for development between the parties dated 14th May 1981. The Suit has been filed in 1991. 2. The writ of summons has been served upon the present Applicants in 1995. The service was refused. An Ex-parte decree came to be passed in 1997. After much delay the Defendants seek to set aside the Ex-parte decree. 3. The Defendants have sought condonation of delay in paragraph 15 of the affidavit in support of this Notice of 2 Motion, though there is no separate prayer for that purpose. 4. Strictly speaking the application for restoration does not lie in view of the inordinate delay. However, the Suit is filed against as many as 14 Defendants. The Ex-parte decree has been passed against all of them. The Ex-parte decree has been set aside and the Suit has been restored to file in respect of Defendant No.1 by an order dated 3rd December 2004. The Suit would therefore, proceed to hearing against the Defendant No.1. Each of the Defendants are vendors in the aforesaid Development Agreement. Hence the cause of action against each of the Defendants is the same. Interest of justice, therefore, requires the Suit to be restored to file also against the Applicants in this Notice of Motion. However, in view of the delay in taking out this Notice of Motion the Suit can be restored against them only upon payment of costs. 5. Hence, the following order:- 1. Upon the Defendants 4 & 13 paying costs of this Notice of Motion fixed at Rs.5000/- each within 4 weeks from today the Ex-parte decree passed against them shall be set aside. 2. If the costs are not paid, the decree shall be confirmed. 3 3. If the costs are paid, the Defendants 4 and 13 shall file their written statement within 30 days thereafter. 4. Notice of Motion disposed of accordingly. (SMT. ROSHAN DALVI, J.)