1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2655 OF 2007 IN SUMMARY SUIT NO.3304 OF 2004 M/s.Balaji Hotels & Enterprises Ltd. ....Plaintiff V/s. M/s.Manju Meadows Pvt. Ltd. ....Defendant V/s. Anil K. Bodani & Anr. ....Applicants Dr.Birendra Saraf with Mr.Vishal Lohire i/b M/s.Negandhi, Shah & Himayatullah for the Applicants. Mr.Pankaj Sutar i/b M/s.Khaitan & Jayakar for the Plaintiff. CORAM : S.J. VAZIFDAR, J. DATE : 4TH NOVEMBER, 2009. P.C. :- 1. This application to set-aside an ex-parte decree dated 24.10.2005 is in the nature of a derivative action. The Applicants claim to be holding a majority of the shares in the Defendant Company. According to them, the rival group is wrongly in management and had not even entered an appearance in the above Summary Suit. In view thereof, the Applicants took out Notice of Motion No.1284 of 2006 in Suit No.924 of 2001 between the Applicants and other shareholders of the Defendant – Company. 2 2. By an order dated 2.2.2007, Notice of Motion no.1284 of 2006 was disposed of by permitting the Applicants to institute the present application for setting aside the ex-parte decree in their own name on behalf of the Defendant – Company. 3. In view of the said order dated 2.2.2007, the ex-parte decree is set-aside. However, considering the facts and circumstances of the case, the order ought to be subject to certain conditions. The suit is filed on a balance confirmation letter. The same was in respect of a loan by the Plaintiff to the Defendant by cheque in the sum of Rs.55,00,000/- in the year 1996. A part payment of Rs.35,00,000/- has admittedly been made leaving a balance of Rs.20,00,000/-. The balance confirmation letter is dated 1.4.2002 and provides for interest at 18% p.a. The balance confirmation letter is around the time the disputes arose between the shareholders of the Defendant inter-se. Prima-facie, however there is nothing to indicate any collusion between the Plaintiff and the Defendants. This of course will be considered as and when the Summons for Judgment is taken out. Moreover, there is nothing to indicate that the loan was not reflected in the balance sheet of the Defendant company from the year 1996 onwards. 4. In the circumstances, the Notice of Motion is made absolute in terms of prayer (a) subject to the Defendant company depositing in this Court a sum of Rs.20,00,000/- on or before 7.12.2009. Even in the meantime, the Plaintiff is at liberty to take out a Summons for Judgment. It is agreed that the present appearance on behalf of the Applicants shall be deemed to be the appearance filed in the suit on behalf of the Defendant 3 and the Applicants. This of course is subject to the amount of Rs. 20,00,000/- being deposited as aforesaid. The affidavit in reply shall be served on the Plaintiff’s advocate within four weeks of the Summons for Judgment being served on the Applicants’ advocate. 5. The Notice of Motion is accordingly disposed of.