1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3810 OF 2009 IN SUMMARY SUIT NO.1659 OF 2002 Mr.Gyan Singh Chandhok .. Plaintiff V/s M/s.New Auto Stores .. Defendant Mr.R.V.Yadav for the plaintiff. Mr.C.N.Chavan for Defendant in support of the Notice of Motion. CORAM: R.G.KETKAR, J. DATE: 1st July, 2011. P.C.: 1. This notice of motion is taken out by the original Defendant for (i) condoning the delay of 1998 days caused in taking out this motion; (ii) setting aside the exparte decree dated 10.04.2003 passed in the Summary Suit No.1659 of 2002. Defendant has filed affidavit of Mrs.Haresh Kochhar, proprietress of the Defendant in support of the notice of motion. 2. Heard learned counsel appearing for the parties. M.Chavan, learned counsel for the Defendant submitted that at the relevant time, affairs of the business of the Defendant were looked after by her son Amar Preet Singh Kochhar. Her son was not in good 2 terms with her and with a view to harassing her he colluded with the plaintiff. Her son is forcing her to sell the residential flat since 2000. Since she did not concede his demands, he disconnected the electricity. She has lodged the N.C.complaint against her son in March 2000 as he attacked her. It is also alleged that initially the Cheque bore date of 20.10.1999 and that was altered and fresh date was written as 27.01.2001 and again signature was made by her son. It is averred that though the alleged goods were supplied in the month of March, 2000 there is no explanation as to why the date of 20.10.1999 was put on the cheque in question. It is further averred that though it is alleged that the Defendant purchased goods on 7th, 8th and 9th March, 2000 under invoices bearing Nos.9964, 9966 and 9968, the plaintiff has not annexed any supporting documents in support thereof. It also indicates that in three days no sale was made by the plaintiff to any other party excepting the Defendant. It is also averred that since she is heart patient she could not attend the suit and exparte decree came to be passed. In support of prayer for condoning the delay, it is contended that in Execution Application No.184 of 2009, notice No.787 under Order XXI Rule 22 of the Code of Civil Procedure, 3 1908 was served on her on 21.7.2009 and thereafter she filed this motion. 3. On the other hand, the plaintiff has opposed this notice of motion. On behalf of Plaintiff, affidavit of Davinder Singh is made opposing the motion. It was denied that the suit was instituted in collusion with the Defendant's son and all other material allegations have been denied. Learned counsel for the plaintiff prayed for dismissal of the motion. 4. I have heard learned counsel appearing for the parties. Defendant has taken out this notice of motion for (i) condoning the delay of 1998 days caused in taking out the motion, and (ii) setting aside the exparte decree on the ground that because of her ill health as also the harassment meted out by her son, she could not attend the suit and exparte decree came to be passed. On the last occasion I called upon learned counsel for the defendant to deposit the entire decretal amount in this Court to show bonafides so as to consider the prayer in the motion. Learned counsel for the defendant upon taking instructions from the proprietress of the defendant who is present in the Court, states that within two months from today, she will deposit the entire decretal amount in this Court. Now in 4 view of this, in order to do substantial justice between the parties, I deem it appropriate to condone the delay in filing this motion as also to set aside the exparte decree, subject to the defendant depositing the entire decretal amount, which I am informed is around Rs.3 lakhs only, in this Court, within two months from today. Hence I pass the following order:- (i) Upon the Defendant depositing Rs.3 lakhs in this Court within a period of two months from today, the delay is condoned and the exparte decree shall stand set aside, (ii) Upon the deposit being made, learned counsel for Defendant shall intimate the said fact to learned counsel for the plaintiff. Upon such information being furnished by learned counsel for Defendant, plaintiff will be at liberty to apply for withdrawal of the said amount within a period of four weeks thereafter. (iii) Upon such deposit being made, unconditional leave to defend the suit is granted to the Defendant, and within a period of four weeks from the date of deposit, the Defendant shall file written statement. (iii) In case the plaintiff does not make application within 5 the stipulated time, the amount so deposited shall be invested in any of the nationalised Bank to the credit of the suit initially for a period of three years and the same shall be renewed from time to time during the pendency of the suit. It is however made clear that in case the Defendant fails to deposit the amount in this Court within the stipulated time, the exparte decree shall stand revived. (iv) Notice of motion is made absolute in terms of prayer clause (a), with no order as to costs. (R.G.KETKAR, J.)