1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3008 OF 2006 IN SUMMONS FOR JUDGMENT NO. 681 OF 2005 IN SUMMARY SUIT NO.1409 OF 2005 S.S. Agarwal ....Plaintiff Vs. K.V. Varghese ....Defendant ----- Mr. T.J. Pandian for Plaintiff Mr. Ajay Panicker for Defendant ----- CORAM: V.M. KANADE J. DATED: 15TH OCTOBER, 2009 P.C. 1. The Defendant has filed this Notice of Motion for modification of the order dated 5th June, 2006 and for granting permission to the Defendant to deposit in this Court an amount of Rs.7,15,762/- and for granting leave to defend to the Defendant. 2. The Plaintiff filed a summary suit against the Defendant and in the said summary suit, summons for judgment No.681 of 2005 was taken out. In the said summons for judgment, an order dated 5th June, 2006 was passed by the learned Single Judge by consent of parties. The Defendant, accordingly, was directed to 2 deposit in this Court an amount of Rs.7,15,762/- within a period of 12 weeks and to file written statement within 12 weeks from the date of deposit of the amount. It was, however, stated in the order that if the Defendant fails to deposit the amount within the aforesaid period, the suit would stand decreed in terms of prayer clause (a). The Defendant could not deposit the said amount within 12 weeks as directed by the Court and, therefore, on 29th August,2009 i.e. immediately within one week after the expiry of 12 weeks,he has filed the present Notice of Motion. Initially, he had asked for extension of 9 weeks for depositing this amount. This prayer, however, was amended and he had asked for modification of the said order dated 5th June, 2006. In the affidavit in support, it was contended by the Defendant that he was in financial crisis during the month of July, 2006 on account of heavy rainfall in Bombay in the months of July and August. There was a slack in his business and, therefore, the said amount could not be deposited in this Court. It was further stated in paragraph 5 of the affidavit in support that his mother was hospitalized in Kerala for about one month in July, 2006 and he had gone to Kerala to look after her. He has also stated that he was suffering from illness and he was under the treatment of doctor for four months and, therefore, the amount could not be 3 deposited in this Court. It appears that an attempt was made by the Defendant to deposit postdated cheques. However, the Court did not accept the postdated cheques in September, 2006. Thereafter, this Notice of Motion remained pending in this Court. The Plaintiff, in the meantime, took out the execution proceeding and the flat of the Defendant was attached and, therefore, an application was made for expeditious hearing of this Notice of Motion. 3. An additional affidavit was filed by the Defendant on 8th October, 2009. In this affidavit, a new case is sought to be made out by the Defendant. It is stated that his then advocate Mr. Siddarth Wakode had failed to argue his case properly and without his knowledge had given consent to this Court for depositing the sum of Rs.7,15,762/- and that he had failed to communicate the said order to him in time. He has changed his advocate and appointed advocate Ashok G. Toraskar. In this additional affidavit, for the first time, a new case is sought to be made out that he had raised funds from his bank by mortgaging his flat at Malad and had drawn a cheque of Rs. 7,15,762/- and had given it to his advocate with instructions to deposit the same in the Court. It is contended that his advocate did not deposit the said cheque in the Court in time. It was contended in the 4 additional affidavit that he presumed that the said cheque must have been deposited in the Court. However, he received Notice No.1321 of 2009 issued by this Court on or about 24.9.2009 and at that time, he contacted his advocate Mr. Toraskar who informed him that the said cheque had not been deposited. Advocate Mr.Toraskar has written a letter to him stating therein that he could not trace the said cheque in his office that he would return it as and when the cheque is found. 4. The learned Counsel appearing on behalf of the Defendant submitted that the Defendant has recently deposited this amount in this Court showing bonafide. The learned Counsel for the Defendant further submitted that the Defendant is ready to pay interest at the rate of 9% from the date of the order i.e. 5 th June, 2006. He submitted that on fault of his advocate the Defendant should not be penalised. He further submitted that he has a very good case on merits. He submitted that, therefore, conditional leave may be granted to the Defendant. 5. On the other hand, the learned Counsel appearing on behalf of the Plaintiff submitted that there are falacies in the stand which was taken by the Plaintiff in August, 2009 In the additional affidavit filed on 8 th August, 20009, he submitted that theory of cheques being given by the Defendant to his advocate was 5 averred for the first time in the additional affidavit. He submitted that from 2006 to 2009 no steps were taken by the Defendant to deposit this amount and only after the attachment notice was issued by this Court, he had filed a praceipe for hearing of this Notice of Motion. Secondly, he submitted that Defendant had filed two other Notices of Motion being Notice of Motion No. 3009 of 2006 and Notice of Motion No.3010 of 2006 which were filed in connection with two suits which were taken out by the Plaintiff. The said two Notices of Motion were dismissed by Justice Shri R.M. Sawant by order dated 30 th September, 2008. This Notice of Motion was, however, not placed along with the said Notices of Motion. He submitted that since the execution proceeding has commenced, the said Notice of Motion has become infructuous. 6. After having perused affidavit in support, additional affidavit and the reply filed by the Plaintiff and after having heard the learned Counsel for the Plaintiff and the Defendant at length, in my view, no case is made out for grant of extension of time to the Plaintiff to deposit the said amount in this Court. Perusal of the affidavit in support of the Notice of Motion dated 29.8.2006 and the additional affidavit dated 8th October, 2009 clearly disclose that attempt has been made by the Defendant to introduce a new case that the Defendant had given 6 the cheque to his advocate for depositing it in the Court. No such reference has been made by the Defendant about giving a cheque to his advocate in his affidavit in support dated 29.8.2006. The learned Counsel for the Defendant was unable to point out the date on which the cheque was issued and given to his advocate. No proper explanation has been given by the Defendant as to why he kept quiet for a period of three years from 2006 to 2009. He has stated in his additional affidavit that he felt that the amount must have been deposited by his advocate. However, the fact remains that since the cheque was not deposited, he should have realised that the said amount was not debited from his account and, therefore, should have made enquiries with his advocate. He, however, was not diligent and did not take any further steps. It is obvious, therefore, that the case sought to be made out by him in the additional affidavit, is an after thought and, therefore the said submission of the counsel for the Defendant cannot be accepted. Lastly, the other two notices of motion which were taken out by the Defendant in the companion suits viz. Notice of Motion No.3009 of 2006 in Suit No. 1674 of 2005 and Notice of Motion No.3010 of 2006 in Suit No.1697 of 2005 were dismissed by this Court on 30th September, 2008. No appeal has been preferred by the Defendant against that order for a period of one year. If this 7 Notice of Motion had been placed along with other two Notices of Motion, an identical order would have been passed. However, merely because this Notice of Motion was not heard along with those Notices of Motion, no order was passed in this Notice of Motion. Submissions made by the learned Counsel appearing on behalf of the Defendant are, therefore, devoid of any merits. No case is made out by the Defendant for granting extension of time to deposit this amount as directed by this Court by order dated 5th June,2006. Lastly, the said order dated 5th June, 2006 was passed by consent and, as such, the question of granting further extension does not arise. Notice of Motion is, accordingly, dismissed. (V.M. KANADE J.)