1 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.12 OF 2008 IN SUMMARY SUIT NO.2627 OF 2004 Velerian A Lewis ....Plaintiff V/s. Holi Cross Co Op Hsg Soc Ltd ....Defendant Mr. S. G. Mahamuni, i/b J. S. Kini, for the Plaintiff. Mr.A. A. Patel, i/b M.A. Patel, for the Defendant. CORAM : S.J. VAZIFDAR, J. DATE : 27 th NOVEMBER, 2009. P.C. :- 1. This is the Defendant’s Notice of Motion for setting aside an exparte decree dated 5th September, 2006. 2. I will presume that the copy of the Writ of Summons was served on the Defendant although the same is denied. 3. The claim in the suit is towards the work allegedly done by the Plaintiff for the Defendant Society. The claim is sought to established on the basis of the Architect’s Report. This, however, pertains to the merits of the dispute. 4. The Defendant states that although the plaint may have been served on the society and one Mr. Pareira who received the same, did not inform the society. Mr. Pareira stated that he did not do so due to oversight and his advance age. It is pertinent to note that the said Mr. Pareira 2 informed the society that what he received was only the plaint and not the Writ of Summons. 5. The Defendant society in order to show its bonafides, is willing to deposit a sum of Rs.2,00,000/- as a condition for setting aside this order, but entirely without prejudice to its rights and contentions. 6. In the facts and circumstances of the case the ends of justice would be met by the following order:- ORDER I) The Notice of Motion is made absolute in terms of prayers (a), (b) and (c) subject to the society depositing a sum of Rs.2,00,000/- on or before 28th February, 2010. In the event the amount being deposited, the same shall be invested in a fixed deposit with a nationalized bank, initially for a period of one year and thereafter for like periods of one year each. II) In the event the amount not being deposited, the Notice of Motion shall stand dismissed without further reference to the Court. III) It is clarified that the amount so deposited shall abide by the result in the Summons for Judgement, if any taken out by the Plaintiff. It will be open to the Defendant to contend that no amount of deposit as stated above, should be ordered to be deposited. IV) In the event of no Summons for Judgment being taken out on or before 28th February, 2010, the Defendant shall be entitled to refund of the said sum of Rs.2,00,000/- forthwith. V) Upon the amount being deposited the attachment would be raised forthwith. VI) The Notice of Motion is accordingly disposed of.