1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.1651 OF 1998 M/s Neela Trust & anr. .... Plaintiffs. V/s Smt Pratibha Prabhakar Prabhu .... Defendants. Ms Anita Tripathi for plaintiffs. Mr. Kantilal Kanojia i/b P.N. Patwardhan for defendants CORAM: V. M. KANADE, J. DATE : 18TH JANUARY, 2010 P.C.:- 1. Heard. 2. This suit has been transferred to the caption of undefended suit. Though defendants were served, no written statement has been filed by defendants. An adequate opportunity was given to defendants. However, no steps were taken to file written statement. 3. Plaintiff No.1 is a private trust. Plaintiff No.2 and her husband were trustees of the said trust. Plaintiff No.2’s husband expired in 1996. Plaintiff No.1 – trust is a tenant of the suit premises where it has a registered office admeasuring 3000 sq. ft. Plaintiff No.1 gave the said 2 premises alongwith the business carried on therein for conducting to one M/s Crystal Social Club which was, at that time, a partnership firm. The said firm was dissolved and one Prabhakar Baburao Prabhu continued as a Proprietor of M/s Crystal Social Club and continued his business in the said premises till his death. Defendants are legal heirs and representatives of the said Prabhakar Baburao Prabhu and they showed their willingness to continue the said business and, accordingly a fresh conducting agreement dated 07/04/1995 was entered into between plaintiff No.1 and the defendants. A copy of the said conducting agreement is annexed at Exhibit-A to the Plaint. In the said agreement, clauses 9 and 12 of the agreement deals with termination of the said agreement in case of default of payment of royalty by defendants. According to plaintiffs, defendants have committed default in payment of royalty for the period ending September, 1997 and, thereafter, royalty amount has not been paid. 4. The averments made in the plaint are not controverted. Suit has been filed within a period of limitation. On account of non-payment of royalty, cause of action has arisen in favour of plaintiffs for filing this suit. Thus, in my view, plaintiffs have proved their case. In view of the provisions of Order VIII Rule 10 of the Civil Procedure Code, Plaintiffs are entitled to judgment and decree. Order VIII Rule 10 of the Civil Procedure Code reads as under:- 3 “ORDER VIII [WRITTEN STATEMENT, SET-OFF AND COUNTER-CLAIM] 10. Procedure when party fails to present written statement called for by Court.- Where any party from whom a written statement is required under rule 1 or rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up.” 5. Since the plaintiffs have established their case, suit of the plaintiffs is accordingly decreed in terms of prayer clause 25(a), (b) and (c). Plaintiffs shall be entitled for costs of the suit. Upon execution of the decree, Court Receiver shall stand discharged. 6. At this stage, Counsel for defendants seeks stay of this judgment and order. The request is declined. (V.M. KANADE, J.) 4