1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. Notice of Motion No.3550 of 2006 IN Summons For Judgment No.446 of 2004 IN Summary Suit No.3114 of 1997 Mrs.Eena S. Teckchandani .. .. Plaintiff v/s. Vinod M. Kamdar & ors. .. .. Defendants Ms.Sapna Rachare i/by T.N. Tripathi for Plaintiff. Mr.A.M. Saraogi for Defendants. ----- CORAM : SMT.ROSHAN DALVI, J. DATED : 17 th July, 2008 P.C. : 1. This Suit has been filed in 1997. Twice the Summons for Judgment has been taken out. Twice the decree has been passed. Twice the decree has been set aside. The Defendants have deposited Rs.6 Lakhs at the time the decree was set aside for the first time in 2004. The Defendants gave a Bank Guarantee of Rs.2 Lakhs at the time the decree was set aside for the second time in 2 2005. The total claim as of today is Rs.15,41,519 /- . This Notice of Motion has been taken out in 2006. An Affidavit- in-reply has been filed in November 2006. The total claim of the Plaintiff in November 2006 was Rs.13,02,719/- , out of Rs.8 Lakhs have been paid. 2. This Notice of Motion challenges the order dated 22.8.2005 passed in the Summons for Judgment No.446 of 2004. The Notice of Motion is taken out on 28 th September 2006. An Appeal from this order has also been preferred. That Appeal has been withdrawn on 22.9.2006. Thereafter this Notice of Motion has been taken out. 3. Mr.Saraogi argued that the Affidavit- in-support of the Summons for Judgment was already made ready and served upon the Plaintiff’s Advocate. But because the Advocate did not appear at the time of the Summons for Judgment on behalf of the Defendants, this Summons for Judgment came to be made absolute. The Defendants have annexed the copy of the said Affidavit to the rejoinder along with the covering letter of the Defendants’ previous Advocate showing the service made upon the Plaintiff’s Advocate on 22.6.2005. The original letter is not produced. The 3 Defendants have been called upon to produce the original letter. The statement in paragraph 9 of the rejoinder with regard to this letter runs thus : “I am in possession of the said letter which shows the reply being served upon the Advocate of the Plaintiff and as also the original Affidavit as affirmed by me.” Since the Defendants are in possession of the original letter, they must produce the letter. They have not produced the original letter. They have instead produced a letter of their previous Advocate dated 16.7.2008 stating that the Advocate had served the Affidavit- in-reply dated 22.6.2005 on 22.6.2005 upon the Plaintiff’s Advocate. It is surprising that the Defendants have a xerox copy of a letter showing the service when the original is not produced and their previous Advocate further gave a letter showing the service without sending the copy of the letter. 4. Mr.Saraogi argued that this aspect has been mentioned in the Memo of Appeal also and the letter has been annexed to the Memo of the Appeal. The letter is not annexed to the Memo of Appeal as stated by Mr.Saraogi. What is mentioned in the Memo of Appeal is that this Affidavit has been served upon the 4 Respondent (i.e. the Plaintiff in the Suit) on 28 th June 2005. 5. It is, therefore, seen that no copy of the Affidavit- in- reply was served upon the Plaintiff’s Advocate as stated on behalf of the defendants. 6. The Advocate for the Plaintiff states that they had received the copy of the Affidavit- in-reply but after one year after the Summons for Judgment is taken out. It is, therefore, shown that the statement of the Defendants in the rejoinder is false. 7. Mr.Saraogi stated that the Defendants are prepared to deposit the entire interest amount which is now remaining due and payable as of today in the Suit, the Plaintiff may be allowed to withdraw the same and the Defendants’ right to be heard be preserved. The decretal amount, as of today, is Rs.15,41,519/- . The Defendants shall pay costs of this Application fixed at Rs.10,000/- . The Defendants shall also pay off the entire balance amount as of today within 4 weeks. If the amount of the costs and the balance decretal amount is paid off, the Suit shall be restored to the file. 5 If it is not paid off within 4 weeks, the Plaintiff may proceed in execution. 8. The Notice of Motion is disposed of accordingly. (SMT.ROSHAN DALVI, J.)