Chandka 1 APP-653-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL (L) NO. 653 OF 2010 IN CHAMBER SUMMONS NO. 788 OF 2010 IN NOTICE OF MOTION NO. 1521 OF 2010 IN EXECUTION APPLICATION NO. 335 OF 2010 IN SUIT NO. 1135 OF 2000 Mrs. Prabha P. Shenai ..Appellant versus The New India Assurance Company Ltd. ..Respondent Mr. Prakash R. Shenai, Constituted Attorney of Appellant, in person. Mr. Herbert A. Noronha for Respondent. CORAM : DR. D. Y. CHANDRACHUD & ANOOP V. MOHTA, JJ. 31 January 2011. P.C. : This Appeal arises out of an order of a learned Single Judge dated 10 August 2010 by which a Notice of Motion under Order IX Rule 13 of the Code of Civil Procedure 1908 has been made absolute by setting aside a decree passed on 24 September 2009. Chandka 2 APP-653-10 2. The claim of the Appellant, who is the original Plaintiff is for the recovery of an amount of Rs.1.57 crores. Originally the Appellant had moved the State Consumer Disputes Redressal Commission which dismissed the Complaint but granted liberty to the parties to seek appropriate remedies. The Order of the State Commission was confirmed by the National Consumer Disputes Redressal Commission. Thereupon the Appellant instituted a suit in this Court. Though the suit was lodged in 2000, the Writ of Summons was not served on the Respondents. Delay was condoned on two occasions and it is only on 22 February 2009 that the Writ of Summons was served. The suit was on board before the learned Single Judge on 17 August 2009 when it was directed to be placed under the caption of “undefended suits”. Until then the Appellant had not paid the court fees. The learned Single Judge noticed that the court fee was paid just prior to the date on which the decree was passed. 3. In the Affidavit in Support of the Notice of Motion for setting aside the Decree it was urged on behalf of the Respondent that the Writ of Summons was served on a Branch Office of the Respondents on 20 February 2009. Since the Branch Office did not have authority to take a decision pertaining to matters pending in the High Court, the Summons Chandka 3 APP-653-10 together with the Plaint was remitted to the Regional Office for taking necessary steps. It has been stated that though the Officer in the Regional Office had received the Summons together with the Plaint, he did not place it before the concerned Manager inadvertently as a result of which the matter remained to be attended. 4. The learned Single Judge while making the Notice of Motion absolute should has taken note of the fact that the Appellant had taken almost 9 years to effect service of the Writ of Summons and the Plaint could have been dismissed on that ground. Be that as it may, delay was condoned and the Writ of Summons was served in February 2009. Even thereafter the court fees were not paid immediately. After evaluating the explanation which has been offered on behalf of the Respondent for non appearance, the learned Judge considered it fit and proper to set aside the decree by making the Motion absolute. 5. The Appellant who has appeared in these proceedings through a Constituted attorney has submitted that there is no explanation worth the name set up by the Respondent for non appearance. In our view, the circumstances which are adverted to in the impugned order of the learned Single Judge justify the finding that sufficient cause had been shown for Chandka 4 APP-653-10 non appearance. At the same time, we are of the view, that an order of costs ought to have been passed by the learned Judge. In the circumstances, we dispose of this Appeal by confirming the order of the learned Single Judge but direct that the Respondents shall pay to the Appellant costs quantified at Rs.7,500/- within a period of four weeks from the date on which a certified copy of this Order is received. The Appeal is disposed of accordingly. (Dr. D. Y. Chandrachud, J.) (Anoop V. Mohta, J.)