1 review pet.lodg.34-11 mgn IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION REVIEW PETITION LODGING NO.34 OF 2011 IN APPEAL NO.1156 OF 2005 IN SUMMANS FOR JUDGMENT NO.886 OF 2004 IN SUMMARY SUIT NO.3036 OF 2003 V. Tribhovandas ..Petitioner Vs. 1.Ryben Pharmaceuticals & Ors. ..Respondents Mr. Vikram Sathaye i/b. S.R. Rawell & Co., for the Petitioner Mr. Jaydeep Mitra and Neville Majra i/b. Yusufs & Associates for respondents. CORAM: B. H. MARLAPALLE & A.M. THIPSAY, JJ. DATED: 28th April, 2011 P.C. Heard the learned Counsel for the parties. This Review Petition has been taken out by the plaintiff in Summary Suit No.3936 of 2003 praying to review/recall our order dated 12th March, 2010 passed in Notice of 2 review pet.lodg.34-11 Motion No.512 of 2009 filed in Appeal No.1156 of 2005. 2. Rule. Defendants waive service. The Review Petition heard finally. 3. In Summary Suit No.3936 of 2003 the defendants were granted conditional leave to defend on deposit of Rs.5.00 lakhs within a period of four weeks from the date of the order i.e. from 4th October, 2005. This order came to be challenged in Appeal No.1156 of 2005. The Division Bench partly allowed the Appeal by its order dated 27th January, 2006 and directed the defendants to deposit a sum of Rs.3,70,000/- by 20th February, 2006 and upon deposit of the said amount the defendants would be treated as having been granted leave to defend the suit. 4. It appears that the amount of Rs.3,70,000/- was not deposited by the defendants by 20th February, 2006 and consequently on 6th December, 2006 the learned trial Judge decreed the suit. Notice of Motion No.512 of 2009 was taken out praying for extension of time to deposit the amount of Rs. 3,70,000/- and the same relief was granted by us by the order under review. Thereafter Execution Application No.425 of 2009 came to be disposed off in view of the order under review It is also admitted that Chamber 3 review pet.lodg.34-11 Summons No.1754 of 2010 has been filed by the plaintiff for withdrawal of the deposited amount pursuant to our order dated 12th March, 2010 and Notice of Motion No.3178 of 2010 has been taken out by the defendants. Be that as it may, we are required to consider whether our order dated 12th March, 2010 deserves to be reviewed/recalled by us. 5. The defendants have filed affidavit in reply and opposed the review petition. It has been stated that the plaintiff was given notice in Notice of Motion No.512 of 2009 and was aware that the said Notice of Motion would come up before the Appellate Court on 12th March, 2010. However, the Plaintiff chose not to cause appearance either in person or through his Advocate. It has been further contended that the Plaintiff has filed Chamber Summons No.1754 of 2010 for withdrawal of the amount of Rs. 5.00 lakhs and this would indicate that the plaintiff has accepted and declared their intention to be bound by the order dated 12th March, 2010. We are not impressed by any of the grounds raised in the affidavit in reply filed by the defendants to oppose the review petition. 6. The record clearly indicates that Notice of Motion No.512 of 2009 was not listed in the regular cause list so as to appear on 12th March, 2010. 4 review pet.lodg.34-11 On an oral motion taken out it was taken on board on that day. There was no affidavit of service filed in Notice of Motion so as to indicate that the opposite party, plaintiff was served and was given notice to appear before us on 12th March, 2010. The affidavit in support of the said Motion also did not mention that the suit was decreed on 6th December, 2006 on account of the failure of the Defendants to deposit the amount of Rs.3,70,000/- by 20th February, 2006. We, therefore, have no doubt in our mind that Notice of Motion No.512 of 2009 came to be allowed exparte and the intervening developments which were material while deciding the said Motion were not brought to our notice and consequently we gravely erred. Therefore, we are satisfied that there is an error apparent on the face of the record while passing the order dated 12th March, 2010 and we must recall the said order and direct Notice of Motion No.512 of 2009 to be placed before the appropriate Appellate Bench. 7. Hence the Review Petition is allowed and our order dated 12th March, 2010 passed in Notice of Motion No.512 of 2009 in Appeal No. 1156 of 2005 is hereby recalled. Notice of Motion No.512 of 2009 in Appeal No.1156 of 2005 stands restored. The said Notice of Motion be placed before the appropriate Court as and when circulated. Rule is made 5 review pet.lodg.34-11 absolute accordingly. No costs. 8. The amount of Rs.5.00 lakhs deposited pursuant to the order recalled be refunded to the defendants, if they apply for the same. (A.M. THIPSAY, J.) (B. H. MARLAPALLE, J.)