IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3317 OF 2009 IN SUIT NO.369 OF 1998 Dr. D. T. Shah & Anr. ..Plaintiffs Vs. Ashokkumar Mangilal Jain & Anr. ..Defendants Mr. Dahivat D. Mehta i/b Thebi & Associates for the Plaintiffs Mr. Rakesh Dave i/b N. N. Vaishnawa & Co. for Defendant No.1 CORAM: DR. D.Y. CHANDRACHUD, J. DATE: 8th October , 2009 P.C. : 1. The Notice of Motion has been taken out by Defendant No.1 for setting aside an exparte decree passed on 10th July 2007. The Suit was instituted for the recovery of a principal sum of Rs.1,01,000/- together with interest. An Affidavit of service of a Special Bailiff was filed stating that the Writ of Summons was served on the brother of Defendant No.1 who had accepted delivery but refused to issue an acknowledgment, on 23rd July 1998. 2. In the Affidavit in support of the Notice of Motion, it has been stated that Defendant No.1 and his brother reside separately. Defendant No.1’s brother resides at Flat No.501-A, Shatrunjay Darshan Motilal Cross Lane, Byculla, Bombay 400 027; Whereas Defendant No.1 resides at 1602, Sumer Tower No.2, Motisha Lane, Mazagaon Mumbai. A copy of the ration card has been annexed. Besides that an Affidavit of Defendant No.1’s brother has also been filed in which, there is a specific denial of the allegation that he had accepted delivery but had refused to acknowledge service. 3. Counsel appearing on behalf of the Plaintiffs, on the other hand, pointed out that the ration card is of 30th July 2008. 4. From the material on the record, it is evident that service was not effected on Defendant No.1. The affidavit of the Special Bailiff was that service was sought to be effected on the brother of Defendant No.1 This would not amount to valid service in the eyes of law on the First Defendant. No reply has been filed to the Notice of Motion, though it was served on the Plaintiffs on 18th September 2009. 5. The Notice of Motion was taken out within time. The Court has been informed that it was on 26th August 2009, that the Bailiff attended the premises of Defendant No.1 for levying attachment. The Notice of Motion was setting aside the exparte decree, was filed on 11th September 2009. 6. Sufficient cause has been shown for setting aside the exparte decree as against Defendant No.1. From the material on record, it is clear that there was no valid service of Writ of Summons. 7. The Notice of Motion is accordingly made absolute in terms of prayer clause (a). Consequently, the attachment, which has been levied on the residential flat of Defendant No.1, shall stand raised. 8. Counsel appearing on behalf of Defendant No.1 states that he has instructions to waive service and to enter appearance on behalf of Defendant No.1. Defendant No.1 shall file a Written Statement on or before 24th November 2009. The Suit shall be placed on board on 1st December 2009, for framing issues. (Dr. D.Y.Chandrachud, J)