IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3456 of 2008. NOTICE OF MOTION NO.3456 of 2008. NOTICE OF MOTION NO.3456 of 2008. IN IN IN SUMMARY SUIT NO.1721 OF 2001. SUMMARY SUIT NO.1721 OF 2001. SUMMARY SUIT NO.1721 OF 2001. Mr.Hatim Suterwalla ..Plaintiff versus Shri Venkatesh Chemi-colour Co. & Ors. ..Defendants Mr.Kishore Jain for the Plaintiff Mr.Girish Godbole for the Defendants CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 26th Nov., 2008. DATED : 26th Nov., 2008. DATED : 26th Nov., 2008. P.C. 1. The plaintiff took out Summons for Judgment in the aforesaid Summary Suit and by Order dated 6.9.2005 defendants including the present defendant Nos.2, 5 and 7 were directed to deposit Rs.30,00,000/- within four week to enable them to defend the suit. That time came to an end on 5.10.2005. These defendants filed an appeal challenging the Order dated 6.9.2005 and the Appellate Bench by its Order dated 19.10.2005 dismissed the appeal and granted time of further four weeks to deposit the amount. That time also -2- expired on 10.11.2005. Non Deposit Certificate was issued on 19.10.2006 and on 9.4.2007 a decree came to be passed against the present defendants. At the time when decree was passed against these defendants, they were represented by an advocate. This would go to show that the knowledge about passing of the decree against these defendants was explicit. It is thereafter in October 2008, this motion was taken out and these defendants have prayed that the decree passed by this Court on 9.4.2007 be set aside. Plaintiff has filed affidavit in reply opposing the relief asked in the motion. 2. I have heard learned Advocates on both the sides. In a matter of this nature, the Court has to exercise powers under Order XXXVII Rule 4 of CPC by exercising the judicial discretion conferred upon it, after considering the facts and circumstances of the case and in particular the conduct of the defendants who are put to terms in the matter of depositing monies by the Court. Here is a case where the defendants did not deposit the amount as per the Order passed on 6.9.2005 by which they had opportunity to deposit the amount and -3- defend the suit. The matter was carried in appeal where they could not succeed and thereafter a decree came to be passed. 3. In the aforesaid situation, it became necessary for this Court to investigate and find out as to why the defendants could not deposit the amount in the Court. The defendants have set out in the affidavit in reply two reasons for not complying with the Court’s order. The first reason is set out in clause (f) of para 3. According to these defendants, the defendant No.3 who was managing the litigation did not inform these defendants as regards the order passed on 6.9.2005 at all. According to these defendants, the defendant No.3 was the main man in the family and he had suffered heart attack and various other reasons are pleaded to show as to how the defendant No.3 did not inform these defendants about passing of the decree. 4. The next ground which is put up in affidavit in reply at clause (g) is, these defendants came to know about the decree only when the Insolvency Proceeding initiated by the -4- plaintiff was served upon the defendants. 5. If these defendants were represented by an advocate at the time of passing of decree, knowledge will have to be imputed to these defendants as regards passing of the decree. The decree having been passed in April 2007, these defendants should have made efforts to move this Court for setting aside the decree dated 9.4.2007. It is true that an application of such a nature can be filed within three years from the date of the decree. However, that does not mean that these defendants should wait for a substantially long time and then file application for setting aside the decree. In my view, the conduct exhibited by these defendants is of such a nature that these defendants do not deserve any relief which they have asked for in the present Notice of Motion. According to me, these defendants have slept over their duty in attending to the matter and to that extent they were indolent. 6. Learned Advocate Mr. Godbole had submitted that these defendants are prepared to deposit Rs.30 lakhs with interest as may be fixed by the Court in -5- order to get chance to defend the suit. In my view, willingness on the part of the defendants to deposit the amount in the Court at this stage cannot be the ground to grant the motion. In my view, considering the conduct of these defendats all throughout these defendants cannot be granted relief. . Before I part with the judgment it is required to be mentioned that these defendants had taken out Notice of Motion No.3567 of 2008 in the Appeal No. 744 of 2006 arising out of the Order passed in the Summons for Judgment after the said appeal was dismissed. In this Notice of Motion No.3567 of 2008 these defendants had sought extension of time to deposit the monies which once upon a time was granted by the learned Appellate Bench. The learned Appellate Bench by its Order dated 20.11.2008 has declined to grant relief. I have perused the said Order. The fact that the learned Appellate Bench has declined to grant relief clearly goes to show that even the Appellate Bench, which at one point of time had granted time to deposit the monies had not found favour in these defendants. This is one more circumstance to show -6- that the courts have consistently disapproved the conduct of the defendants. Hence the Order. ORDER . Notice of Motion is dismissed with no order as to costs. (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)