IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1519 of 2008. NOTICE OF MOTION NO.1519 of 2008. NOTICE OF MOTION NO.1519 of 2008. IN IN IN SUIT NO.3393 of 2006. SUIT NO.3393 of 2006. SUIT NO.3393 of 2006. Ram Shankar Gupta ..Plaintiff versus The Maharashtra Housing & Area Development Authority & Another ..Defendants Mr.R,V.Govilkar for the Plaintiff Mr.G.W.Mattos for the Defendant in support of Notice of Motion CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 26th Nov., 2008. DATED : 26th Nov., 2008. DATED : 26th Nov., 2008. P.C. 1. The plaintiff served the Writ of Summons upon the defendants on 16.1.2007. The defendants did not file written statement till 3.4.2008. Hence, on 3.4.2008 order came to be passed directing that the suit should proceed without written statement. The defendants have taken out this motion for setting aside this Order dated 3.4.2008. The plaintiff has not filed any affidavit in reply opposing the Notice of Motion. However, learned Advocate Mr. Govilkar appearing on behalf of the plaintiff has opposed the motion on the basis of the record by drawing my attention -2- to the fact why the motion should not be made absolute. 2. I have heard learned advocates on both the sides. According to learned Advocate Mr.Mattos delay was unintentional. He stated that it is because of the various difficulties faced by the office of the defendant No.1 as well as defendant No.2, written statement could not be filed. 3. Learned Advocate Mr. Govilkar submitted that the explanation tendered through affidavit in support of the notice of motion may at the most go to show that the said explanation pertains to the functioning of the defendant No.2 and not defendant No.1, which is a body namely MHADA. According to him this explanation cannot be accepted and the motion should be dismissed as there has been total negligence on the part of both the defendants in attending to the matter. According to him the present suit was for recovery of money. The defendants ought to have been vigilant about the matter. 4. I have considered the rival submissions and -3- perused the affidavit in support. The affidavit in support says something about the events which took place so far as the defendant No.2 and his office is concerned. In my view detail affidavit ought to have been filed so as to explain as to what transpired in the office. At the same time, keeping in view the fact that the defendant No.1 is a public body and that defendant No.2 is officer of unit of the said public body, a lenient view will have to be taken and that the interest of both the parties can be balanced by directing the defendants to deposit cost of Rs.10,000/- for setting aside the order dated 3.4.2008. Ofcourse payment of cost will be condition precedent. This cost will have to be borne by that person who was holding the office of defendant No.2 on 3.4.2008. . On hearing this learned Advocate Mr.Matoos stated that the concerned Deputy Chief Engineer (R) of defendant No.2 is Mr.Satish Lokare and he was holding charge as on 3.4.2008. In view of this, cost will have to be paid by Mr. Lokare. Hence the order. ORDER -4- . Motion is made absolute in terms of prayer clause (a). . Mr.Lokare presently holding the office of Defendant No.2 to pay to plaintiff cost of Rs.10,000/- (Rupees Ten Thousand Only). Cost to be paid by Mr. Lokare from his personal account. Cost to be paid to plaintiff before filing the written statement. . Written statement to be filed on 18.12.2008. . Adjourned to 18.12.2008 for written statement. (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)