IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.4007 OF 2007 IN SUIT NO.615 OF 1997 Rajawadi Co-op. Housing Society Ltd. ..Plaintiff V/s The Maharashtra Housing and Area Development Authority & Anr. ..Defendants Shri J.S. Kini i/b Suresh Dubey for the Plaintiff CORAM ; A.A.SAYED, J. DATE : 6TH MAY, 2009 P.C: 1. The above Notice of Motion has been taken out by the Plaintiff-Society to set aside the order dated 4-12-2003 of dismissal of the suit passed by the Prothonatry and Sr. Master on account of non service of writ of summons on the defendants. The present Notice of Motion is taken out in September, 2007. There is delay of about 3 years and 9 months in taking out the Notice of Motion. In the affidavit of service of Notice of Motion it is stated that the matter was looked after by one Mr. Shrinivasan the then Secretary of the Society from 1997 onwards. It is further mentioned that every time on enquiry as well as in AGM intimation was given to the members of the Plaintiff-Society by the Secretary that the suit is pending and the Society was under bonafide impression that the suit was pending and same will come up for final hearing. It is further stated that said Shrinivasan was Secretary of the plaintiff-society till 2002 and thereafter one Mr. Satish Goswami was the Secretary till 2004, and he was looking after the matter between 2002 and 2004 and he expired in the year 2004 and it was only thereafter it was found that the Advocate on record : 2 : had returned the papers to the Society since the Society had not given instructions to him and the suit came to be dismissed. After coming to know of the dismissal of the suit in 2007, the above Notice of Motion has been taken out in September, 2007 for restoration of the suit. 2. Learned Counsel for plaintiffs has pointed out prayer (a) of the plaint which states as follows:- "That the Hon'ble Court be pleased to declare that the Defendants No.1 are duty bound to follow the rules of the B.M.C. in respect to the open plots of land in relation to the suit-plot at Chittranjan Nagar, Rajawadi, Kirol village Ghatkopar (E) Mumbai 400 077." 3. Affidavit-in-reply is filed by the Defendant No.2-Society, which essentially contains denials. None however, appears on behalf of the Defendants. 4. Having heard the learned Counsel for the plaintiff-society, in my view the plaintiff-society should not be made to suffer on account of any lapses, if any, on the part of the Secretary of the Society and the Society cannot be non-suited on this count. The learned Counsel for the plaintiff- society fairly submitted that the plaintiff-society can be put to terms. Taking over all view of the matter, in the interest of justice, I am inclined to allow the Motion subject to costs. Hence, the following order:- Notice of Motion is allowed in terms of prayer clause (a) subject to costs of Rs.10,000/- to be paid by the plaintiffs, to Defendant no.1 before 16th July, 2009, : 3 : 5. The learned Counsel for the plaintiffs assures the Court that necessary steps would be taken insofar as service of the writ of summons is concerned at the earliest. Service of Writ of Summons is made returnable on 30th July, 2009. 6. Notice of Motion is disposed of. ( A.A. SAYED, J.)