- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.4533 OF 2007 IN APPEAL LODGING NO.867 OF 2007 IN SUIT NO.2328 OF 1991 Indian Transport Organisation, Transport Contractors & Fleet Owners. .. Appellants Vs. Hindustan Aluminium Corporation Limited & Another. .. Respondents -- Shri S.V.Vora for the Appellants. Smt.Asha Nair i/b Mahesh Menon for the Respondents. -- CORAM : SRI R.M.S.KHANDEPARKAR & SRI P.B.MAJMUDAR, JJ DATED : 25TH JUNE, 2008 P.C. 1. Heard. This Notice of Motion is taken out for seeking relief in the nature of condonation of delay of 190 days in presenting the appeal against the decree passed by the learned Single Judge. In the affidavit in support of the Notice of Motion, it is stated that the appellants were not aware of the fact that the suit proceeded ex parte on account of non - 2 - filing of the written statement and the cause for failure to file written statement was that the matter appeared on the board without the display of name of the advocate for the appellants, and therefore, there was no appearance on behalf of the appellants and consequently the written statement remained to be filed. 2. The suit relates to the year 1991 being Suit No.2328 of 1991. The Notice of Motion as well as the affidavit in support thereof nowhere discloses the date on which the suit was fixed for filing written statement. However, there are certain facts stated in the memo of appeal which sufficiently disclose knowledge to the appellants about the proceedings in the said suit atleast from 15th December, 2006 onwards, much prior to the disposal of the suit. 3. The paragraph Nos.2, 3 and 4 of the memo of appeal read thus:- "2. The said suit was placed on board for filing written statement and as the name of the advocate did not appear on the board, the advocate did not attended the said matter and hence the - 3 - same is transferred to the undefended suit. 3. The Appellant states that thereafter the suit was placed on board on 15th December 2006 before His Lordship Justice Dr.D.Y.Chandrachud, J and His Lordship Justice Dr.D.Y.Chandrachud directed plaintiffs to file an affidavit in lieu of Examination in chief of their Witness and compilation of the original documents and the said is adjourned to 11th January 2007. 4. The Appellant states that thereafter the matter was placed on board on 22nd January 2007 before His Lordship Justice Shri D.G.Karnik and His Lordship Justice pleased to pass a decree in terms of a and b of the plaint under order 8 rule 10 of the Civil Procedure Code hereto annexed and marked Exhibit B copy of the authentic copy of the order dated 22nd January 2007." - 4 - 4. The verification clause to the memo of appeal by the Attorney of the appellants reads thus:- "I, VINOD G.PODAR, Adult, Indian Inhabitant, Constituted Attorney of the Appellant above named residing at 305 Ashirwad, Ahmedabad Street, Mumbai 400 009 do hereby solemnly declare that whatever has been stated hereinabove in paragraph 1 to 6 is true to my own knowledge and whatever stated in paragraph 7 to 14 is on my information and belief and I also believe the same to be true." 5. The verification clause clearly discloses that the Attorney was fully aware of the facts stated in paragraphs 1 to 6 of the affidavit and therefore the same are verified to be true to his own knowledge and whatever contained in paragraphs 7 to 14 are clearly based on the information received by him. The facts which have been stated to be true are to his own knowledge include the fact that the matter was placed on a particular day for filing written statement, however, the name of the advocate did not appear on the board, and therefore, the advocate did not appear in the matter, as also the matter came up for hearing on 15th December, 2006 before a particular Judge and - 5 - the learned Judge had given specific directions and the matter was adjourned to 11th January, 2007 and further the matter was placed on 22nd January, 2007. Inspite of knowledge of the present proceedings in the matter, there is no explanation as to what prevented the appellants at all those stages to take appropriate steps in the matter. In other words, the contention that the appellants came to know about the disposal of the suit only after receipt of the notice for demand is patently incorrect on the face of record. In such circumstances, we do not find any cause being shown for condonation of delay in filing the appeal. Hence the Notice of Motion is rejected. 6. In view of rejection of the Notice of Motion for condonation of delay, the Appeal Lodging No.867 of 2007 also stands disposed of. ( R.M.S.KHANDEPARKAR, J ) ( P.B.MAJMUDAR, J )