1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. Notice of Motion No.1537 of 2008 IN Summons for Judgment No.244 of 2003 IN Summary Suit No.3495 of 2002 Reeshab Teelak Chemicals Pvt.Ltd. .. .. Plaintiffs v/s. M/s.Landmark Processors & anr. .. .. Defendants WITH Notice of Motion No.1538 of 2008 IN Summons for Judgment No.238 of 2003 IN Summary Suit No.3494 of 2002 Sonali P. Shah .. .. Plaintiff v/s. M/s.Landmark Processors & anr. .. .. Defendants Mr.D.P.Shah for plaintiffs. Mr.B.B. Saraf with Ms.Neeta Solanki i/by M/s.Kiran Jain & Co. for defendants. (In both matters). ----- CORAM : SMT.ROSHAN DALVI, J. Dated : 5 th May 2008 P.C. : 1. These two suits have been filed for the price of the goods sold 2 and delivered as reflected in the invoices of the plaintiffs. The goods have been accepted by the defendants. The defendants contended that they are of inferior quality. The defendants have sued the plaintiffs for damages. The defendants have made certain without prejudice offers prior to the filing of the suit, which is an Exhibit to the Plaint. The plaintiffs took out Summons for Judgment in both the suits. 2. An ex-parte decree came to be passed initially on 24 th November 2004 as the defendants failed to appear at the hearing of the Summons for Judgment. The defendants took out a Notice of Motion precisely 30 days thereafter i.e. on 24 th December 2004 to set aside the ex-parte decree. The ex- parte decree came to be set aside on 31.1.2006. The Summons for Judgment was to be re-heard on merits on 23.1.2006. An order was passed under the Summons for Judgment to deposit Rs.2 Lacs in both the suits. That conditional deposit has also not been made. Consequently, again an ex-parte decree came to be passed on 17.7.2006. 3. The affidavit in support of the Notice of Motion shows that the defendants had knowledge of the order passed on the Summons for Judgment in July 2006 itself when they made inquiries in the Court. Despite knowledge of the order, the 3 amount remained unpaid. 4. It is only when the plaintiffs took out an insolvency Notice on 31.1.2008 that the defendants have taken out the aforesaid Motions on 20 th April 2008. The insolvency Notice is pending in the competent Court. 5. The defendants must explain the delay in not depositing the amount if they desire the second ex-parte decree also to be set aside. The decree having been passed as far back as on 17.7.2006, with the knowledge that the defendants had of its passing, the defendants must strictly explain each day of delay. That is not done. The defendants have made certain allegations against their then Advocate. Whatever be the role of the Advocate, the order came to be passed and is required to be obeyed or challenged. It has neither been obeyed nor challenged and the delay has not been explained. 6. The suits have been filed since 2002. The contract between the parties under the invoices was of 2001/2002. The goods which have admittedly been delivered are lying with the defendants. The suits are filed for the principal amount on the invoices together with the contractual rate of interest specifically printed on the invoices and which is binding on the parties. The decree is for such amount with further 4 interest upto the filing of the suits. 7. It is argued on behalf of the defendants that on merits the defendants have no claim since they have already sued for damages. The defendants initially sought damages of Rs.5 Lacs and Rs.2 Lacs under the transaction in both these suits. They have sued for damages of Rs.2 Lacs and Rs.1 Lac, respectively instead. Filing the suits for damages itself is not a pointer to the defendants' defence on merits. 8. It is seen that in these suits aside from the claim of the inferior goods, nothing further is shown on merits. Decree has been passed twice by this Court. Six years have elapsed after filing of the suits. The execution of the decree has been thus far successfully resisted. The defendants must deposit in Court the amounts claimed in the suits in its entirety to be granted leave at such a late stage and without showing cause for their delay to set back the clock against the plaintiffs. Hence, the following order:- ORDER Upon depositing in Court a sum of Rs.3,38,520.47 and a sum of Rs.1,02,832.00 in the aforesaid two suits within 8 weeks from today, both the Motions shall be made absolute in terms of prayers (a) and (c). If both these 5 amounts are not deposited, the plaintiffs shall proceed in execution as per law. 9. Both the Motions are disposed of accordingly. [SMT.ROSHAN DALVI, J.] .