1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.4289 OF 2009 IN SUIT NO.2896 OF 1997 The Board of Trustees of the Port of Bombay. ..Plaintiffs. Vs. M/s. Mansarovar Paper &Industries Ltd. and ors. ..Defendants. Mr.U.J.Makhija along with Mr. Parag Kandhar i/by Mulla & Mulla for the plaintiffs. Mr.R.S.Kelkar i/by Mehta Lalji & Co. for the Defendant No.2. Mr.S.R.Rawell for the Defendant No.3. CORAM : R.S. MOHITE, J. DATE : 15th June, 2010 PC : 1 This is a notice of motion made by the defendant No.2 for condoning delay of 74 days and for setting aside the ex-parte decree and judgment dated 26.8.2009. It is seen that on 26.8.2009, this court passed a decree against the defendant Nos. 1 and 2 in terms of prayer clause (a) of the suit with the modification that the plaintiffs will be entitled to interest at the rate of 9% p.a. The decree was passed as the defendant Nos. 1 and 2 failed to file their written statement despite service of the writ of summons. It is seen that the suit is of the year 1997.The writ of summons was served in 2004,. It is clear that written 2 statement was not filed for very substantial period of time, in which circumstance, the suit was set down for ex-parte decree and ultimately such decree came to be passed on 26.8.2009. On behalf of the plaintiffs, it is contended that after writ of summons was served upon the defendant No.2, he had engaged his Advocate to enter his appearance on 16.1.2004. It is stated on behalf of the defendant No.2 that that though the advocate was engaged, he did not keep him inform in spite of the enquiry about the progress of the matter. Counsel for the plaintiff contends that the explanation given is not sufficient within the ambit of Order 9 Rule 13 of the C.P.C. Be that as it may, I am inclined to grant this notice of motion subject to deposit of the principal l amount as claimed in this court within a period of 4-weeks from today. The principal amount claimed by the plaintiff in this suit is Rs. 5,82,148/-. On the condition of the said amount being deposited in this court within a period of four weeks from today, notice of motion is allowed in terms of prayer clause (a) and (b). If the amount is not deposited within 4- weeks from today, notice of motion be treated as dismissed. It is made clear that no extension of time will be granted for deposit. On the deposit being made, the defendant No.2 will be entitled to file his written statement and the same should be filed within a further period of two weeks from the date of the deposit. 3 2 On the deposit being made, the plaintiffs will be entitled to withdraw the amount deposited on their giving undertaking and bond to this court to the effect that, if directed, by the court they will return the amount within a period of three weeks of receiving such directions with 9% p.a. interest thereon. If the amount is not withdrawn within a period of eight weeks from the date of the deposit then Prothonotary & Senior Master of this court will invest the said amount in a nationalized bank initially for a period of three years and thereafter renew the same on yearly basis until further orders . Notice of motion stands disposed off. (R.S. MOHITE, J.)