1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.937 OF 2008 ALONGWITH CIVIL APPLICATION NO.1128 OF 2008 M/s Darshan Enterprises & Ors. .... Appellants Vs. Kaveri Co-operative Housing .... Respondents Society Ltd. & Ors. Mr. B.A. Vora, Advocate for Appellants. Mr. Swapnil Bangar i/by A.V. Jain Associates for respondent No.1. Coram : SMT. R.P. SONDURBALDOTA,J Date : 23rd September, 2008 P.C. 1. This Appeal arises out of order dated 25th July, 2008 dismissing Notice of Motion No.612 of 2008 taken out by the appellants for setting aside exparte decree. 2. Respondent No.1, a Co-operative Housing Society filed the instant suit inter alia for a mandatory injunction directing the appellants who are promoters and builders to comply the statutory obligations under Maharashtra Ownership And Flats Apartments Act, 1961 of transferring and conveying the property to the society. The suit was filed in April 2006. Immediately thereafter the writ of summons was served upon the appellants and 2 other defendants to the suit. Despite service, the appellants failed to appear in the Court and contest the suit. Consequently exparte decree came to be passed on 23rd November, 2006. About two years thereafter i.e. on 17th March, 2008, the appellants took out Notice of Motion for setting aside the exparte decree, which came to be rejected by the impugned order dated 25th July, 2008. 3. Mr. B.A. Vora, learned counsel for the appellants submits that appellants no. 2 and 3 who are elderly persons being aged about 65 and 69 years were unable on account of their ill-health to attend the Court on 23rd November, 2006. It appears that both are suffering from diabetes and other related ailments. The appellants however, do not state anything about their non appearance in the Court, pursuant to the service of the writ of summons upon them. There is no cause whatsoever made out in the affidavit in support of Notice of Motion explaining their failure to appear before the Court. The appellants also do not state in the affidavit as to how and when they learnt about the impugned order. They merely state that they learnt about the same a month prior to the present Notice of Motion. 4. In the impugned order, the learned Judge has referred to the provisions of Limitation Act and the 3 cause shown in the affidavit of service of the Notice of Motion for the delay. He has observed that only vague statements are made that one of the appellants was ill and due to old age the other could not remain present. With this, it is observed that the cause shown is not sufficient particularly when the delay is of 1½ years in taking out the Notice of Motion. The learned Judge has rightly appreciated the case made out by the appellants. Further since the suit filed by respondent no. 1 is for fulfillment of the statutory duty of the appellants under Maharashtra Ownership And Flats Apartments Act, 1961, it is not open for the appellants to contend that they will not fulfill their statutory obligations. Hence, the Appeal from Order is dismissed in limine. 5. In view of the disposal of the Appeal from Order, the Civil Application does not survive. The same is accordingly disposed off. (SMT. R.P.SONDURBALDOTA,J)