rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 4028 OF 2008 NOTICE OF MOTION NO. 4028 OF 2008 NOTICE OF MOTION NO. 4028 OF 2008 IN IN IN SUMMARY SUIT NO.370 OF 1986 SUMMARY SUIT NO.370 OF 1986 SUMMARY SUIT NO.370 OF 1986 United Phosphorous Pvt.Ltd. .. Plaintiffs V/s. Hindustan Insecticides Ltd. .. Defendants Mr.Prakash Shah, Mr.Pritesh Rajgor i/b.P.D.S.Legal for the Petitioner. Mr.A.S.Doctor i/b. Kanga & Co. for the Defendants. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 17TH DECEMBER, 2008 DATED : 17TH DECEMBER, 2008 DATED : 17TH DECEMBER, 2008 P.C. P.C. P.C. . This Notice of Motion is taken out by the Plaintiffs to condone the delay in filing the written statement and for taking written statement on record. The Defendants filed written statement cum counter claim. According to the Defendants a copy of the Written statement cum counter claim was served upon earlier Advocate by letter dated 30th March, 1990. 2. The learned counsel for the Defendants could not produce any documents to show that the letter ( 2 ) dated 30th March, 1990 alongwith the copy of the written statement was duly served. What is annexed to the Affidavit in reply is a xerox copy of the letter dated 30th March, 1990. In my view, that cannot constitute a proper document to show that the written statement cum counter-claim was served upon the Plaintiffs way back in March, 1990. On record, the learned counsel for the Plaintiffs tendered letter dated 6th August, 2008 sent by Defendants attorney forwarding there alongwith letter, written statement and counter claim. 3. The last line of the said letter it says that the said copies are being served upon the Plaintiffs " As and by way of service on the Plaintiffs". In my view, this letter clearly goes to show that the written statement cum counter claim was served upon the Plaintiffs on 6th August, 2008 or thereabout. If the Defendants served the written statement cum counter claim upon the Plaintiffs way back in 1990 reference to the same ought to have been found in this letter. ( 3 ) 4. In my view, sufficient cause is made out to show that the Plaintiffs could not file written statement to the counter claim. In my view, the Notice of Motion is required to be granted. Hence, the order : :: O R D E R :: :: O R D E R :: :: O R D E R :: i. The Notice of Motion is made absolute in terms of prayer clauses (a) and (b). ii. There shall be no orders as to costs. iii. The Plaintiffs to file written statement on 5th January, 2009. iv. Adjourned to 5th January, 2008 for written statement. (R.Y.GANOO,J.) (R.Y.GANOO,J.) (R.Y.GANOO,J.)