1 s879-09.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.879 OF 2009 M/s.Gargi Huttenes Alvertus Pvt Ltd .. Plaintiffs versus HGI Foundries now known as India Power Services Ltd .. Defendant Mr.S.N.Nagpurkar i/by Legal Liasons for plaintiff No.1. Mrs.Kanchan R. Nigam, Legal Officer and Constituted Attorney of the plaintiffs, present. CORAM : S.C.DHARMADHIKARI, J. 5th October 2011. P.C.: . It is stated that prior to the institution of this suit, a company petition for winding up was filed against the respondent which is a company incorporated and registered under the Companies Act, 1956. On that Company Petition bearing No.197 of 2007, an order was made on 9th August 2007 granting opportunity to the respondent-defendant in this suit to avoid consequence of admission of winding up petition by depositing a sum of Rs.1,53,696/- in this Court within a period of three months from the date of the said order. That amount has been deposited in this Court. Thereafter, in pursuance to the liberty granted 2 s879-09.doc by this Court in the said order, the original petitioner-plaintiff instituted this suit for recovery. After institution of this suit for recovery, the plaintiff has served the writ of summons on the defendant. However, the defendants have failed to appear or take any steps to defend the claim. It is pursuant to the non filing of the written statement that this suit is placed for passing an ex-parte decree. 2 It is clear that the suit is undefended because no written statement or defence is placed on record. It is also clear that despite issuance of writ of summons and that having been duly received, the defendant has failed to enter appearance in person or through an advocate so as to controvert the claim of the plaintiff. The suit is placed for ex-parte decree but the defendant and the advocate is absent. The affidavit of evidence of the plaintiff is filed in the Court. The said affidavit is affirmed by Ms.Kanchan Nigam, Legal Officer and Constituted Attorney of the plaintiffs. She is present in the Court. She has confirmed her signature below para 19 of this affidavit at page 7. She has stated that this affidavit has been prepared as per the plaintiffs instructions and the plaintiffs have duly authorised her to affirm it and file it in this Court so also give evidence on their behalf. The necessary authorisation and 3 s879-09.doc contents thereof are also confirmed by her. Each of the statements in the affidavit are confirmed. She states that contents of the documents are true and correct. She confirms the correctness of the particulars in the invoices. She states that the original invoices are with the defendant and these are true copies thereof. She confirms the endorsement below the same inasmuch as the material has been duly received. She also confirms the particulars of the statement of the amounts which are stated to be outstanding, covered by the invoices. Thus, each of the bill with the outstanding amount and referable to order placed is confirmed by her. The entries in the statement are also thus proved. She also confirms the contents of the advocate’s notice, a copy of which is also found in the compilation. She states that Company Petition No.197 of 2007 was filed in this Court by the petitioners against the respondents and on 9th August 2007, the same has been disposed off. A certified copy of the order passed is shown to her and she states that this order is passed in the said Company Petition which was duly instituted by the plaintiffs. 3 Neither the defendant nor his advocate is present to cross- examine the witness. The affidavit of evidence is thus taken on record. 4 s879-09.doc Once the contents of the documents are also proved, each one of them are marked in evidence and taken on record as Exhibit X1 collectively. In the light of the fact that the claim of the plaintiff stands proved by virtue of the oral and documentary evidence on record and none of the statements in the deposition being controverted, there will be decree as prayed. There will be refund of Court fees as per the rules. In the light of the decree that is passed in the suit, the plaintiffs are at liberty to withdraw the sum deposited in this Court with accrued interest. The Prothonotary and Senior Master/Registrar (O.S) to act upon an authenticated copy of this order. (S.C.DHARMADHIKARI, J)