: 1 : nms-2976-09=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2976 OF 2009 IN CHAMBER OF SUMMONS NO. 135 OF 2008 IN EXECUTION APPLICATION NO.441 OF 2006 IN SECUNDERABAD O.S. NO.313 OF 1997 TCI Finance Ltd. .. Plaintiffs v/s. M/s. Delvin Electric Pvt. Ltd. & Anr. .. Defendants ......... Ms. Shilpa Kapil for the plaintiffs Mr. Rasiwala i/by Siddique & Associates for applicant ......... CORAM : R.Y.GANOO, J. DATE : 16th SEPTEMBER,2010. P.C. : 1. Learned Counsel for the plaintiffs stated that she has no objection for hearing of the motion on merits though no affidavit-in-reply is filed on behalf of the plaintiffs. The plaintiffs filed Execution Application No. 441 of 2006 and applied for sell of certain properties including flat no. 102 which is the subject matter of Chamber Summons No.135 of 2008. By Chamber Summons No.135 of 2008, the applicant wants that order : 2 : nms-2976-09=.sxw dated 16th November, 2007 passed by the Commissioner, High Court, Bombay for sell of flat no.102 situate at Mangal Prabhat CHS, Gulmohar Cross Road No.7, JVPD Scheme, Mumbai 400 049 should be set aside. The said chamber summons was dismissed by order dated 27th April, 2009. The present motion is taken out for restoration of the said chamber summons. 2. Applicant concedes that there is a delay of 75 days in filing the present notice of motion. On the basis of the affidavit-in-support, it can be observed that the learned advocate appearing on behalf of the applicant was held up in some other Court and the applicant was out of India on account of her official duty namely her job as Air Hostess. This motion is taken out for setting aside the order dated 16th November, 2007 which came to be passed in the circumstances mentioned aforesaid. 3. Learned Counsel for the plaintiffs opposed the motion on the ground that the applicant and / or her advocate should have made arrangement to remain present in the Court and absence of advocate as well as applicant, cannot be a ground to allow the motion. She had taken me through the relevant dates and has submitted that delay of 75 days has not been explained by stating appropriate reasons and, : 3 : nms-2976-09=.sxw therefore, the motion should not be allowed. 4. It is well settled that in order to consider setting aside the order which came to be passed on account of absence of the advocate and / or a party, one may also have to look into the merits of the matter. By order dated 16th November, 2007 flat no.102 is ordered to be sold. Learned Counsel for the applicant has produced documents to prima- facie show that the applicant is the owner of flat no.102 and defendants have no concern whatsoever with the said flat. This will go to show that the merits of the chamber summons are required to be gone into and one cannot resort to technicalities and the case of the aplicant cannot be brushed off by dismissing the present notice of motion. Interest of the justice requires that the applicant must get one hearing to enable him to advance argument to show to the Court that order dated 16th November, 2007 deserves to be set aside. At the same time, the applicant is required to be put to terms for securing restoration of the chamber summons. Looking to the facts of this case, I am inclined to put applicant to the terms in the nature of payment of costs and in my view if the cost at Rs.5,000/- is fixed, that would met the ends of justice. Hence, following order is passed. : 4 : nms-2976-09=.sxw ORDER (i) The motion is made absolute in terms of prayer clauses (a) and (b). (ii) The applicant to pay to plaintiffs costs of Rs.5,000/- on or before 30th September, 2010. (iii) Restored Chamber Summons No.135 of 2008 to come up for hearing on 19th October, 2010. Parties to complete the pleadings in the meantime. (iv) Adjourned to 19th October, 2010 for hearing of the Chamber Summons No.135 of 2008. On 19th October, 2010 applicant will have to show proof of having paid cost to the plaintiffs. (R.Y.GANOO, J.)