1 nms399-10.sxw pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Notice of Motion No. 399 of 2010 in Execution Application No.203 of 2009 in Notice No.875 of 2009 in Suit No. 3129 of 1995 The Board of Trustees of the Port of Bombay .. Plaintiffs v/s. M/s.Globe Plate Glass Industries & Others ..Defendants Ms.Manjiri Shah i/b. Mulla & Mulla for the Plaintiffs Mr.Swapnil Bangur with Amrish Gajbhiye i/b.M/s.S. Ashwinikumar & Co. for the Defendant No.3. CORAM : R.Y.GANOO, J. DATED : 7th January , 2011 P.C. : 1. The plaintiffs filed this suit against three defendants and the present notice of motion is taken out by the defendant no.3, State Bank of India, for setting aside decree dated 5.2.2004 passed against defendant no.3. By prayer clause (b) permission is sought to file 2 nms399-10.sxw written statement. By prayer clause (c) delay in making this application is sought to be condoned. The affidavit in reply is filed by the plaintiffs. 2. I have heard learned counsels on both sides. The defendant no.3 in their affidavit in reply have admitted that the writ of summons was served upon them and thereafter concerned officer did not attend to the said matter. A point is sought to be raised by contending that the proceeding bearing No.4866 of 1996 were also filed against the three persons and those three persons are the parties in this suit also and the stand is taken that defendants got confused. The defendants have taken the stand that they were served with the notice under Order 21 Rule 22 of C.P.C. on 17.12.2009 being Notice No.875 of 2009 and till that time defendant no.3 were not aware of the passing of the decree against them. It is in these circumstances the defendant no.3 has taken out this notice of motion for setting aside the decree. 3. My attention was drawn by the learned counsel for the defendant no. 3 that though the plaintiffs have referred to defendant no.3 as notified party and have pressed their claim against defendant no.3, there is no 3 nms399-10.sxw material placed before the court to show even prima facie that defendant no.3 can be called as notified party. This argument was advanced despite no such denial on their part in their affidavit in support of notice of motion. Learned Counsel for the defendant no.3 conceded that there is some delay on the part of the defendant no.3 in attending the suit. Learned Counsel for the defendant no.3 contended that on merits defendant no.3 has good case because plaintiffs have not been able to make out a case even prima facie that defendant no.3 would be liable . He, therefore, submitted that the defendant no.3 should be permitted to defend the suit and for that the decree be set aside. 4. Learned Counsel appearing on behalf of the plaintiffs submitted that by decree dated 5.2.2004 the court has passed an order under Order 8 Rule 5 and 10 of CPC. However, perusal of the order does not specifically say so that the learned Judge has proceeded under Order 8 Rule 5 of C.P.C. I am saying this on the basis of the statement appearing in paragraph 1 “Hence the matter has to proceed under Order 8 Rule 5 and 10 of CPC against defendant nos.1 and 3.” Order 8 Rule 5 permits the court to pass a decree. Similarly, Order 8 Rule 4 nms399-10.sxw 10 of CPC also permits passing of decree. In the present case since there is no specific sentence in the judgment that the decree is being passed under Order 8 Rule 5 of CPC, I am not inclined to treat this decree dated 5.2.2004 as judgment under Order 8 Rule 5 of CPC. 5. After having considered the text of the plaint, it is abundantly clear that the plaintiffs have no doubt stated that defendant no.3 is the notified party. However, there is no documentary evidence produced before the Court through exhibits to say that defendant no.3 can be called as notified party. Learned Counsel appearing on behalf of the plaintiffs submitted that in para 4 particulars of Import General Manifest are given and according to her name of defendant no.3 was incorporated in the IGM. There is no such specific averment in the plaint and copy of the said IGM is not annexed to the plaint for the purpose of court’s perusal and decide even prima facie whether the name of defendant no.3 appears in the IGM. 6. Learned Counsel appearing on behalf of the plaintiffs submitted that when the copy of the plaint was served upon the defendants and defendants have not protested the averments in the plaint. Counsel 5 nms399-10.sxw for plaintiffs therefore submitted that the defendant No.3 is liable to pay the suit claim. I am not inclined to accept this argument. If it was the stand of the plaintiffs that the defendant no.3 is a notified party, they were required to place document before the court by which they have termed defendant no.3 as notified party. 7. It was argued by the learned Counsel for the plaintiffs that letters were issued to defendant no.3 calling upon them to pay the monies from time to time and the defendant no.3 have not denied the contents of the said notice and have not objected to the contents of the said notices and therefore the contents of the said notice and consequently the averments in the plaint ought to be accepted and therefore the plaintiffs have made out a good case to contend that the suit was properly filed against the defendant no.3 and the conduct on the part of the defendant clearly goes to show that they had admitted the claim of the plaintiffs. I am not inclined to accept this submission. Merely because a party issued demand notice to other party to clear its dues, it does not mean that the liability is accepted by the party who is called upon to pay the amount. Looking to the entire matter, I am inclined to observe that defendant no.3 has good 6 nms399-10.sxw case on merits and therefore despite the delay on their part in attending to the matter the decree passed against the defendant no.3 is required to be set aside. 8. It is in these circumstances, I am inclined to pass orders in terms of prayer clauses (a), (b) and (c). 9. I am conscious of the fact that the suit came to be filed way back in 1995. The decree came to be passed in the year 2004. In a situation like this, in order to see that the suit is disposed of on merits as fast as possible, I am inclined to direct the defendant no.3 to file their written statement within two weeks from today so that the suit can be taken up on top priority basis and it can be decided on merits. 10.Since defendant no.3 had not taken any active steps for the purpose of attending to the matter they are requried to be put to terms in the nature of costs. In my view, cost of Rs.15,000/- to be paid to the plaintiffs would meet the ends of justice. Hence the following order is passed. 7 nms399-10.sxw ORDER i. Motion is made absolute in terms of prayer clauses (a), (b) and (c). ii. Defendant no.3 to pay to plaintiffs costs of Rs.15,000/- (Rupees Fifteen Thousand Only) within period of 10 days from today. Learned Counsel for the plaintiffs shall inform the learned Counsel for the defendant No.3 as to how the costs shall be paid by the defendant no.3. Iii. Matter stands adjourned to 24.1.2011. To be shown in the column of written statement. On that day defendant no.3 shall file written statement directly in the court, and give copy to the advocate for the plaintiffs well in advance. If this direction is complied with on 24.1.2011 further orders to take up the suit as expeditiously as possible will be passed. If on 24.1.2011 defendant no.3 fails to file written statement the decree passed against defendant no.3 dated 5.2.2004 shall stand and this order passed in the motion setting aside decree dated 5.2.2004 shall stand recalled. 8 nms399-10.sxw 11.Adjourned to 24.1.2011 for filing written statement. To be shown in the column of written statement. Orders regarding notice under Order 21 Rule 22 and Execution Application will be passed only after defendant no.3 files written statement as stated earlier. [R.Y.GANOO, J.]