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.2932 of 2007. NOTICE OF MOTION NO.2932 of 2007. NOTICE OF MOTION NO.2932 of 2007. IN IN IN SUMMARY SUIT NO.665 OF 2006. SUMMARY SUIT NO.665 OF 2006. SUMMARY SUIT NO.665 OF 2006. Kamlesh C. Oza. ..Plaintiff versus Suresh Ramji Ingale ..Defendant Ms.Priya Agarwal i/b. Halai & Co. for the Plaintiff Ms.Vaishali Bhamat for the Defendant in support of Notice of Motion. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 5th December, 2008. DATED : 5th December, 2008. DATED : 5th December, 2008. P.C. 1. The plaintiff instituted suit against the defendant for recovery of monies on the basis of suit agreement dated 23.1.2004, Writ of Summons was served upon the defendant. However, he did not file his vakalatnama. Hence the regular procedure was followed and the suit came to be decreed on 6.12.2006. The defendant has filed this motion so as to have set aside the decree dated 6.12.2006. 2. Affidavit in reply is filed by the plaintiff. I have heard learned Advocates on both the sides. Affidavit in support of notice of motion no doubt states that the defendant was in -2- jail when the writ of summons was served. It also mentions as to how the wife of the defendant attempted to attend in the matter, but in vain. It may be true that the defendant may have faced difficulty in attending to the matter, but that by itself cannot be the ground to allow him to have the suit restored to the file of the Court without putting him to terms. This is so because the suit is based on written agreement between plaintiff and defendant by which loan was advanced to the defendant and that the defendant had issued various cheques in favour of the plaintiff purported to be cheques towards repayment of the loan amount. No doubt it is the stand of the defendant that the loan agreement was forged. That may constitute defence for the defendant. As of today, fact remains that on record there is agreement between plaintiff and defendant for loan and the defendant had issued cheques in favour of the plaintiff. 3. In my view, in a situation like this, considering the suit claim and the entire matter it would be proper to set aside the order dated 6.12.2006 by putting the defendant to terms. In my view, sum of Rs.1,00,000/-, if ordered to be -3- deposited by the defendant, it would meet the ends of justice. Hence the Order: ORDER i. Defendant is directed to deposit sum of Rs.1,00,000/- (Rupees One Lakh Only) as part of condition for setting aside the decree dated 6.12.2006 and for restoration of the suit to the file of this Court. Defendant to deposit this amount of Rs.1,00,000/- on or before 23.1.2009. ii. If the defendant deposits the said amount on or before 23.1.2009, the decree dated 6.12.2006 to stand set aside and the suit shall get restored to the file of this Court without any further order from this Court. iii. If the defendant fails to deposit in this Court, the sum of Rs.1,00,000/- on or before 23.1.2009, this motion shall stand dismissed for want of prosecution with no order as to costs. iv. If the defendant deposits the amount of Rs.1,00,000/- in this Court, the Prothonotary & -4- Senior Master shall invest the same with nationalised bank initially for a period of six months and continue to renew the same for the like period till further order of the Court. v. If the defendant deposits this amount of Rs.1,00,000/- in the court, defendant through his advocate will inform the plaintiff’s advocate that the amount has been deposited. In that event, the plaintiff will be free to take out summons for judgment. vi. In view of the aforesaid order, execution of decree dated 6.12.2006 is stayed till 2.2.2009. vii. Notice of motion is disposed of in the above terms with no order as to costs. (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)