1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.401 OF 2009 IN SUIT NO.2946 OF 1984 Kotecha Investment Corporation Pvt.Ltd. .. Plaintiffs versus Mumtaz Begum & Ors. .. Defendants Mr.H.V.Chande for the plaintiffs. Mr.A.N.Maniyar for the defendants. CORAM : A.S.OKA, J. DATE : 26th November 2009. P.C: . Called out for final hearing. Heard learned counsel appearing for the defendants in support of notice of motion. I have heard the learned counsel appearing for the plaintiffs who has opposed the notice of motion. 2. The prayer in this notice of motion is for setting aside the order dated 11th August 2005 which directed that the suit will proceed against the defendants without their written statement. The 2nd prayer is that the defendants be permitted to file written statement. When this notice of motion came up for the first time on board of 10th November 2009, this Court suggested to the learned counsel appearing for the defendants that if the written statement is kept ready within a period of one week, notice of motion can be made absolute subject to defendants paying heavy costs to the plaintiffs. Thereafter, on more than one occasion, time was granted to the learned counsel appearing for the defendants to enable him to keep the written statement ready. Today when the notice of 2 motion is called out, the learned counsel appearing for defendants state that as inspection of original documents has not been given to him, he is unable to draft the written statement. 3. I have taken up the notice of motion for hearing. In the affidavit in support of the notice of motion and in particular in paragraph 2, a reason is given as to why the advocate appearing for the defendants could not reach the Court on 11th August 2005. All this is stated in the affidavit in support filed by the advocate for the defendants himself. No grievance has been made in the affidavit that written statement could not be filed as inspection of the documents was denied to the defendants. The learned counsel appearing for the defendants has also invited my attention to the rejoinder filed by defendant No.1A. 4. The learned counsel appearing for the plaintiffs submitted that the original defendant was represented by Mr.D.R.Shukla, advocate and alongwith a covering letter dated 7th August 1987 he forwarded a true copy of the written statement of the defendant. The learned counsel for the plaintiffs pointed out that the original written statement is not on record. He has produced for perusal of the Court a copy of the said written statement tendered to him by Mr.D.R.Shukla, advocate. He submitted that there is no reason for setting aside the order passed by this Court way back in the year 2005. He submitted that though time was granted by this Court from 10th November 2009, written statement of the defendants is not kept ready and hence no indulgence deserves to be shown. 5. I have carefully considered the submissions. It must be stated here that at no stage any grievance has been made by the defendants that inspection of the documents relied upon by the plaintiffs was denied to them. Perusal of the plaint 3 shows that apart from Deed of Assignment dated 29th July 1955 referred to in paragraph 1 of the plaint, the plaintiffs are relying upon the sketch of the suit room and the architect’s report which are annexed to the original plaint. The Exhibit B is the original report signed by the architect. There is nothing on record to show that inspection of the alleged Deed of Assignment was demanded by the defendants. 6. The learned counsel appearing for the plaintiffs has produced for perusal of the Court the copy of the written statement served to him by Mr.D.R.Shukla, advocate. Perusal of the record shows that the original written statement is not on record. Perusal of paragraph 3 of the said copy of the written statement shows that the contents of paragraph 1 of the plaint in which there is a reference to Deed of Assignment have been admitted by the original defendant. 7. It must be noted here that on 10th November 2009 when notice of motion was called out, this Court suggested to the advocate for defendants to keep the written statement ready so that the notice of motion can be made absolute subject to payment of costs. Thereafter, atleast on two occasions time was granted to the counsel for defendants to enable him to keep the written statement ready. At no stage a grievance was made by the counsel for defendants that he was unable to draft the written statement as inspection was denied. Today, he has come out with such grievance. 8. In the suit of the year 1984, going by the affidavit filed in support of the notice of motion, though there is no cogent explanation for delay, in the interests of justice, a limited time deserves to be granted to the defendants to file written statement. The defendants will have to pay costs quantified at Rs.10,000/-. 4 9. Hence, I pass the following order: : O R D E R : (A) Notice of motion is made absolute in terms of prayer clauses (a) and (b) subject to following conditions: 1. The defendants shall pay costs of Rs.10,000/- to the plaintiff on or before 17th December 2009. 2. The defendants shall file the written statement on or before 17th December 2009. 3. The payment of costs will be condition precedent. 4. It is made clear that no further time to file written statement shall be granted. (B) The suit shall be set down for directions on 11th January 2010. (A.S.OKA,J)