1 1351.10-nms bgp IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1351 OF 2010 IN SUMMARY SUIT NO.2593 OF 1992 M/s.Shree Varun Trading co. ..Plaintiff Vs. M/s.Pratap Rajasthan Special Steels Ltd. & Anr. ..Defendants And Ratanchand Murarka ..Applicant Mr.Anil Bagwe for plaintiff. Mr.Mikail Behl a/w. Ms.Sneha Patil i/b. M/s.Sonal Doshi & Co. for applicant. CORAM : S.J.KATHAWALLA,J. DATE : FEBRUARY 23, 2011 P.C.: 1. The present Notice of Motion is taken out by defendant No.2 for setting aside the exparte decree dated 21st January, 2003 passed in the above Summary suit and for condoning the delay, if any, in taking out the said Notice of Motion. 2. It is the case of the defendant No.2 that he was not served with the writ of summons. Learned Advocate appearing for the plaintiff is unable to show that the Writ of Summons was served on defendant No.2. An undertaking was given by the plaintiff to this Court at the time of passing of the decree on 21st January, 2003 to file an affidavit of service within one week from the date of the said order. The said undertaking was accepted. The plaintiff till date has failed and neglected to file the affidavit of service, as undertaken. 2 1351.10-nms 3. In view thereof, the exparte decree dated 21st January, 2003 passed in the above Summary suit against defendant No.2 is set aside. Since the plaintiff has not served the writ of summons on the defendant No.2 since the year 1992 and has wrongly taken out a Summons for Judgment and obtained an exparte decree thereon which he was not entitled to do and has also committed a breach of the undertaking given to this Court on 21st January, 2003, the suit is dismissed against defendant No.2. Notice of Motion accordingly stands disposed of. (S.J.KATHAWALLA,J.)