1 dgm IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. NOTICE OF MOTION NO.1735 OF 2009 IN SUMMARY SUIT NO.2503 OF 2001 Bhupatbhai K. Koticha .... Plaintiffs vs Aminex Rasayan & ors. .... Defendants Mr. L. H. Patil with Mr.K.J.Hakani for the plaintiffs. Ms. Kavita Brid i/b. Nivit Shrivastav for defendants 1, 3 to 5. CORAM: ANOOP V. MOHTA, J. DATE : 2nd July, 2009 P.C.: 1 This notice of motion is taken out by the defendants to condone the delay and to take written statement on record pursuance to order passed by this court on 13.03.2006, whereby the court had permitted the defendants to file written statement within four weeks from the date of the order. In Summary Suit No. 2503/2001, a summons for Judgment was taken out which was disposed of by granting an unconditional leave to defend the suit. The suit was transferred to the list of commercial causes. It means the court has not accepted the case of the plaintiffs to grant decree/summons for judgment as prayed in a summary suit. It also means that there is a defence available. 2 In this background, considering the averments made in paragraphs 4 and 5, 2 which is reproduced below, I am inclined to grant this notice of motion in the interest of justice to give opportunity to both the parties to put forth their case in the trial. “4. I say that however, earlier Advocate of these Defendants did not take any step to file the written statement on behalf of these defendants. Also the defendants had already filed their reply Summons for judgment taken out by the plaintiff and were not aware that it is necessary to file the written statement. It is only when the defendants were served with the Notice of Motion No.172 of 2009 taken out by the plaintiff to pronounce the judgment under Order VII Rule 10 of Civil Procedure Codee, 1908, the defendants came to know about filing of the written statement. I say that due to inadvertence on the part of e3aqrlier Advocate, the defendants could not file the written statement in time as provided by an Order dated 13th March, 2006. 5. I say that thereafter defendants wanted to change their Advocate in the above matter. The defendants have now engaged new Advocate to appear on behalf of these defendants. I submit that the written statement of these defendants remained to be filed through the inadvertence of the earlier Advocate. I say that the written statement of these defendants is ready to file in order to comply with the order of this Hon’ble Court. I say that delay in filing the written statement is unintentional.” 3 The client should not suffer because of inaction on the part of Advocates. The reply was filed to the summons for judgment. Therefore, the defendants were under impression that itself was sufficient. No written statement was filed, though there was direction to file written statement within four weeks. This non- communication or non-understanding and/or inadvertence/inaction on the part of the earlier Advocate, in my view, should not be the reason to deny the right to the defendants to defend the Suit. 4 Resultantly, this notice of motion is allowed in terms of prayer (a) with 3 modification that the written statement be filed within one week from today. However, this is subject to costs of Rs.10,000/- to be paid to the plaintiffs within two weeks from today. 5 Notice of motion stands disposed of accordingly. No costs. (ANOOP V. MOHTA, J.)