1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1755 OF 2008 IN SUMMARY SUIT NO.1362 OF 2005 Dilip Shah ..Plaintiff V/s Gayatri S. ..Defendant Ms.Kavita Lalwani, Advocate, for the plaintiff Mr.Rajan Kakkara, Advocate, for the defendant CORAM : R.M.SAVANT, J. DATE : 8TH DECEMBER, 2008 P.C. . The above Notice of Motion has been filed by the defendant for condonation of delay in filing the same and for setting aside ex- parte decree dated 22nd November, 2005, passed by His Lordship Mr.Justice S.J.Vazifdar inter alia making the Summons for Judgment absolute and decreeing the Suit with costs. 2. The suit was filed to recover an amount due in respect of three dishonoured cheques. It has been recorded in the Order dated 22nd November, 2005 that the said three cheques were drawn for 2 valuable consideration. It has further been recorded in the said order that there is no affidavit-in-reply filed and there is no reply filed to the advocate's notice demanding payment. In the said circumstances, the said suit has been decreed. 3. It is the case of the defendant that she had engaged the services of an advocate Mr.Clive D'souza, who had filed Vakalatnama of his Associate Shabeer Rassiwala. It is her case that the affidavit- in-reply to the Chamber Summons was prepared on 18th July, 2005 and filed on 21st July, 2005 in the registry of this Court. It is her case that on 22nd November, 2005, when the suit was decreed neither advocate appeared in the said suit and neither of them informed the defendant that the suit was on board on the said day. It therefore resulted in the ex-parte decree being passed against the defendant. It is further the case of the defendant that the plaintiff filed a complaint before the Bar Council of Maharashtra on 24th January, 2006, for cancelling the registration of the defendant and it is at the said time that the defendant became aware of the ex-parte decree being passed against her. It is also the case of the defendant that the 3 plaintiff filed two complaints under Section 138 of the Negotiable Instrument Act, 1888 being Case No.702/SS of 2005 and Case No.703/SS of 2005. It is the case of the plaintiff that she was deserted by her husband in the year 2005 that her mother was sick and that she herself was suffering from Cervical Spontilisis and Vertigo Hypertension from January, 2006. It is, therefore, her case that the delay in filing the above Notice of Motion and for setting aside the ex-parte decree be condoned and that the said ex-parte decree be set aside. 4. On behalf of the plaintiff it is contended that the reasons cited by the defendant are not bona fide as there is a delay right from January, 2006 upto May, 2008 in filing the above Notice of Motion for setting aside the ex-parte decree. It is further stated that acknowledgement of the affidavit-in-reply having been filed in the Summons for Judgment in the registry is also not free from doubt as the said affidavit-in-reply was never served upon the plaintiff. It is further stated that only after the insolvency proceedings were finalised that the instant motion has been moved for urgent reliefs. 4 5. I have heard the learned counsel for the parties. It would be pertinent to note that the decree has been passed as long back on 22nd November, 2008. It will also have to be borne in mind that the defendant is an advocate practising in Mumbai. The conduct of the defendant as the facts disclose is one of calousness and negligence. The defendant as per her own case became aware of the decree passed in January, 2006, when the plaintiff had moved the Bar Council. There is no explanation from the defendant as to why she had not made any enquiries with the advocates, she had appointed to prosecute the said summons for Judgment as regards the status of the said proceedings. The said conduct of the defendant therefore, can be said to be unnatural, more so since she is a practising advocate. 6. According to the learned counsel for the plaintiff, if affidavit- in-reply to the Summons for Judgment was in fact filed by the defendant as submitted by the learned counsel for the defendant, no affidavit-in-reply was ever served upon the plaintiff. A look at the 5 stamp of the acknowledgement endorsed on the letter of the advocate for the defendant, it is not clear as to whether the said affidavit-in- reply was filed in the year 2005 or 2007, as prima facie the last digit of the year appears to be seven and not five and therefore, the case of the defendant that she had in fact filed an affidavit-in-reply to the Summons for Judgment cannot be accepted per se. The ground of the illness of the defendant as made out in the affidavit in support also does not take the defendant's case any further as no proper material is placed on record by the defendant to indicate that right from November, 2005 till May, 2008, when the instant Notice of Motion was filed she was unwell. General statements have been made as regards the illness from which the defendant was suffering. Therefore, the said ground of illness also cannot be accepted. 7. In matters of condonation of delay it is not only the case of the applicant which is to be considered but also the case of the otherside and the prejudice that would be caused to them if the delay is condoned, ought to be taken into consideration. In the instant case, as indicated above, the decree has been passed as long back as on 6 22nd November, 2005. In my view, the grounds set out in the affidavit- in-support do not constitute sufficient cause to condone the delay of more than two years. The conduct of the defendant, does not entitle her to the discretion being exercised in her favour. In that view of the matter, no reliefs can be granted to the defendant in the above Notice of Motion. The Notice of Motion is accordingly rejected. (R.M.SAVANT, J.)