1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 653 OF 2008 IN SUMMARY SUIT NO.3342 OF 1994 Vimla R. Dalmia .... Plaintiff. V/s Denver Packaging & Ors. .... Defendants. Mr. Lalit Jain for plaintiff. Mr. Pankaj Das for defendants. WITH NOTICE OF MOTION NO. 660 OF 2008 IN SUMMARY SUIT NO.3343 OF 1994 Allok Ratankumar Dalmia .... Plaintiff. V/s Denver Packaging & Ors. .... Defendants. Mr. Lalit Jain for plaintiff. Mr. Pankaj Das for defendants. WITH NOTICE OF MOTION NO. 659 OF 2008 IN SUMMARY SUIT NO.3344 OF 1994 2 Ajay Ratankumar Dalmia .... Plaintiff. V/s Denver Packaging & Ors. .... Defendants. Mr. Lalit Jain for plaintiff. Mr. Pankaj Das for defendants. CORAM: V.M. KANADE, J. DATE : 14 th September, 2009 P.C.: 1. Heard the learned Counsel appearing on behalf of plaintiff and the learned Counsel appearing on behalf of defendants. 2. Since facts in all the above cases are identical, these notices of motion are being disposed of by a common order. 3. Defendants have taken out these Notices of Motion for setting aside the ex parte judgment and decree dated 6/2/1991 in the above suits. They are also seeking leave to appear and defend the above summary suits. In the affidavit in support filed by defendant No.2, it is submitted that though the decree 3 was passed on 6/2/1995, he came to know about the said decree only on 8/6/2007. It is submitted that when he applied for certified copy of the said decree, it was delivered to him on 25/7/2007. He has stated that, thereafter, he approached the other defendants who were having one difficulty or the other and as a result Notices of Motion could not be filed till February 2008. One of the grounds taken by him in the affidavit in support viz. (G), is that the acknowledgment annexed to the affidavit of service dated 17/1/1995 is forged and fabricated. It is further stated that defendant No.1 – partnership firm was not in existence on the said date and the acknowledgment card shows that defendant No.1 accepted service some time in the month of December, 1994. He has further averred that by an agreement of absorption dated 1/7/1992, original defendant No. 1 – firm was absorbed in Denver Packaging Pvt. Ltd., which is a Company incorporated under the Companies Act. It is further stated that seal/rubber stamp used to show the service of writ of summons also could not have been put on the acknowledgment card since, on that date, firm itself was not in existence and, therefore, the said rubber stamp/seal could not have been in existence on that date. It is further submitted that though an ex parte decree was passed on 6/2/1995, execution application was filed in 2007. Further, it is submitted that plaintiffs were aware 4 of the existence of the Company Denver Packaging Pvt. Ltd. since part of the amount was paid by the said firm. It is therefore submitted that the ex parte decree be set aside and the suits be restored to the file. 4. It is not possible to accept these submissions. First of all, there is gross delay in filing these Notices of Motion for setting aside the ex parte decree. Even, according to defendant No.2 he became aware of the ex parte decree on 8/6/2007. Sufficient explanation has not been given by defendants as to why Notice of Motion was not filed immediately. Notice of Motion itself has been filed in February, 2008. No attempt has been made to obtain ad-interim order for staying the execution of decree though the Notice of Motion was registered on 8/2/2008 and almost for a period of one year, defendants did not take any steps. It is only after the property was attached, the applicants have moved these Notices of Motion for urgent ad- interim relief. The gross delay, therefore, caused in filing these Notices of Motion has not been explained. 5. So far as service of writ of summons is concerned, the writ of summons was served by Registered Post A.D. and it was served at the registered address of the defendant – firm. 5 Presumption, therefore, will have to be drawn that the writ of summons which was served by Registered Post A.D. was served in the official course of business. Though a ground has been raised in the affidavit in support that by the time writ of summons was served, defendant No.1 – firm was not in existence and that it was taken over by Denver Packaging Pvt. Ltd. which is incorporated under the Companies Act, the agreement of absorption which is annexed to the affidavit in support clearly shows that the partner of defendant No.1 and Director of the said Company is the same viz Mr. Joe Edward Annunciation. When a query was made to the learned Counsel for defendants as to why the profit and loss account and balance sheet of the said Company was not produced, he was unable to give any coherent answer. Further, clause 5 of the said alleged agreement of absorption clearly indicates that the said Corporation Denver Packaging Pvt. Ltd had undertaken to pay, satisfy and discharge all the debts and liabilities of the firm. The said Company therefore had stepped into the shoes of defendant – firm. Neither the defendants nor the said Company had informed the plaintiffs about the said absorption of the defendant – firm and, as such, plaintiffs were entitled to pursue their remedy against defendants for non-payment of dues. 6 6. No case is therefore made out for setting aside the ex parte decree. No sufficient cause has been shown by defendants for condonation of delay in filing these Notices of Motion. The ex parte decree was passed on 6/2/1995 and almost after 13 years these Notices of Motion have been taken out for setting aside the ex parte decree. There is no merit in the submissions made by the Counsel appearing on behalf of defendants. 7. Notices of Motion are accordingly dismissed and disposed of. Interim order stands vacated. (V.M. KANADE, J.)