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.884 of 2007 NOTICE OF MOTION NO.884 of 2007 NOTICE OF MOTION NO.884 of 2007 IN IN IN SUMMONS FOR JUDGMENT NO.383 OF 2006. SUMMONS FOR JUDGMENT NO.383 OF 2006. SUMMONS FOR JUDGMENT NO.383 OF 2006. IN IN IN SUIT NO.1564 OF 2006. SUIT NO.1564 OF 2006. SUIT NO.1564 OF 2006. M/s. B.Anantha Bhat & Sons .. Applicant Org. Defendant Versus M/s.L. Javerchand Jewellers Pvt. Ltd. .. Respondent Org. Plaintiffs Mr.Prashant Chande i/b/ Suman Jain for the Plaintiff Mr.P.S.Kulkarni for applicant in support of the notice of motion/ Defendant CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 1st Oct., 2008. DATED : 1st Oct., 2008. DATED : 1st Oct., 2008. P.C. 1. This motion is taken out by the defendant to have set aside the Order dated 7.11.2006 passed in Summons for Judgment No.383 of 2006 by which decree came to be passed in favour of the plaintiffs. I have heard learned advocates on both the sides. The record shows that on 7.11.2006 the Summons for Judgment was at serial No.52 and the learned advocate for the defendant remained absent and that is how the matter was taken up and the Order came to be passed on 7.11.2006, particularly because affidavit in reply to the summons for -2- judgment was not filed. 2. I have heard learned advocates on both the sides. The defendant has admitted having purchased gold worth Rs.1,19,999/- from the plaintiffs. As against that the plaintiffs contend that gold worth Rs.10,19,999/- was purchased. Learned advocate Mr. Chande submitted that on the invoice signature of the purchaser below the rubber stamp is found and that according to Mr. Chande it is full proof to show that the gold worth Rs.10,19,999/- was sold to the defendant. Nothing in particular is shown by the plaintiffs to show that the goods were actually delivered by the plaintiffs and there is no such endorsement on the invoices or any receipt for having received the goods etc. 3. It appears that if the advocate for the defendant would have remained present he would have been able to persuade the court so as to get the time, but because the learned advocate remained absent the court proceeded to pass an order. Because the learned advocate did not appear before the Court, the litigant should not suffer since the defendant has admitted having purchased gold worth -3- Rs.1,19,999/-. After having considered the entire matter I am inclined to direct the defendant to deposit in this Court sum of Rs.2,00,000/- for setting aside the Order dated 7.11.2006 and restore the summons for judgment to the file of this Court. I am also inclined to direct the defendant to pay to plaintiff cost quantified at Rs.5000/-. 4. For the reasons mentioned aforesaid, the motion is disposed of by passing the following Order. ORDER i. Motion is made absolute in terms of prayer clause (a) and (b) on the condition that Defendant to pay to plaintiffs cost of Rs.5000/- (Rupees Five Thousand Only) as cost of this motion. Cost to be paid on or before 18.10.2008. ii. As condition of this Order the defendant is directed to deposit in this Court sum of Rs.2,00,000/- (Rupees Two Lakhs Only) on or before 18.10.2008. -4- iii. Upon receipt of the amount, the said amount shall be invested in nationalised bank initially for a period of six months and the said Fixed Deposit Receipt should be renewed from time to time till further Order. iv. Summons for judgment No.383 of 2006 is restored to the file of this Court and is adjourned to 11.11.2008 for hearing and disposal. v. Parties to complete the pleadings before the next date. Copy to be supplied to the advocate for plaintiffs on or before 21.10.2008. (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)