:1: :1: :1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 3422 OF 2006 IN SUMMARY SUIT NO. 2838 OF 2000 SICOM Ltd .....Plaintiffs. vs. M.Khandelwal and anr. .....Defendants. Mr.K.Setalwad with Mr.P.V.Shah for the plaintiffs to show cause. Mr.K.R.Bulchandani i/by.P.Kumar & Co. for the defendants in support. CORAM: CORAM: CORAM: S.J.VAZIFDAR, J. S.J.VAZIFDAR, J. S.J.VAZIFDAR, J. NOVEMBER NOVEMBER NOVEMBER 29, 2006. 29, 2006. 29, 2006. P.C. P.C. P.C. : : : 1. The Notice of Motion seeks setting aside of an ex-parte judgment/decree dated 31.7.2001 in the :2: :2: :2: above summary suit. 2. On the face of it, there is a delay of over 1700 days. 3. The first question that arises is whether sufficient cause has been made out for setting aside the ex-parte decree. 4. The suit was filed on 7/6/2000. On 8/8/2000 the writ of summons was served. On 26.2.2001 a reference was filed before the BIFR under the provisions of the Sick Industrial Companies Act (SICA). The decree was passed on 31.7.2001 while the reference was still pending. The plaintiff was intimated about the reference before the BIFR only on 28.8.2001. 5. Prima-facie it does appear that the defendants who are the guarantors of the company in respect of whom the reference is pending before the BIFR were validly served with the writ of summons on 8/8/2000. They however chosed to remain absent. :3: :3: :3: 6. Mr.Bulchandani, however submitted that the defendants had not been served. In paragraph 6 of the affidavit-in-support the defendant has merely stated that defendant no.1 is a senior citizen and is undergoing medical treatment. He states that he does not recall having received the summons in the above suit and that if the same is received, the same has been misplaced in the heaps of other legal papers. Apparently, the defendants are facing various other legal proceedings as well. In paragraph 7 of the affidavit-in-support, defendant no.2 apologised to the court for the error on his part in failing to be more vigilant. He states that he has also undergone medical treatment. Both the defendants are undergoing a lot of stress due to various litigations. Prima-facie it does appear that the defendants though served with the writ of summons remained absent. According to them they came to know about the ex-parte decree only on 31.1.2006 when the insolvency notice was served on them. :4: :4: :4: 7. This appears to be highly doubtful. The only circumstances which indicate, that the defendants may not be altogether incorrect is that before the BIFR, permission was sought by the plaintiff to take action against the guarantors. This is recorded at the meeting of the BIFR held on 3.7.2002 and 3.9.2002. Mr. Bulchandani, laid emphasizes on the fact that at those meetings, the plaintiff did not mention that the decree had already been passed on 31.7.2001. In all probability, the permission that was sought was in respect of the execution proceedings. However, I am unable to say that in view of the said minutes, 7 the matter is totally free from doubt. 8. In the circumstances, only as a matter of indulgence I intend granting the defendants a further opportunity of meeting the case on merits. 9. In the circumstances, the following order is passed:- . The Notice of Motion is made absolute in terms :5: :5: :5: of prayer clause (a) and (b) subject to the defendants paying to the plaintiffs the costs fixed at Rs.50,000/- within four weeks from today as a condition precedent. It is clarified that if the costs are not paid, the Notice of Motion shall stand dismissed and the decree shall stand. The order is also subject to the defendants filing in this court on affidavit the details of all the properties, movable and immovable held by them or in which they may have any right, title or interest whatsoever. The defendants shall further undertake not to alienate, encumber, part with possession of or create any third party right, title or interest in respect of such properties. This however shall be subject to any orders that may be passed by any court, tribunal or other judicial authorities. sd/- ********