1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3811 OF 2009 IN SUIT NO.1192 OF 2003 Shri Vishwanath Nagesh Nadkarni & Ors. .... Plaintiffs Vs. Recovery Officer, DRT-II, Mumbai & Anr. .... Defendants Shri Dasgupta i/b J. Narula & Associates for the Plaintiffs. Ms Aarathy Thampy i/b Viraj Maniar Associates for Defendant No.2. CORAM: A.S. OKA, J. DATED: DECEMBER 03, 2009 P.C: 1. Heard the learned counsel appearing for the second defendant in support of the notice of motion and the learned counsel appearing for the plaintiffs. 2. One of the prayers in the notice of motion is for setting aside the order dated 10-3-2008 passed by the learned Commissioner 2 for Taking Accounts, by which the suit was ordered to be transferred to the list of undefended suits. The learned counsel appearing for the second defendant has invited my attention to the assertion made in the affidavit in support and in particular from paragraph 5 onwards. He submitted that sufficient reasons have been set out as to why written statement could not be filed earlier. 3. The learned counsel appearing for the plaintiffs submitted that the writ of summons was served to the original defendant No.2, then known as United Western Bank Limited, way back in the year 2003. He submitted that the present second defendant was aware that the present suit was pending and this fact is reflected from the roznama of the proceedings before the Debt Recovery Tribunal. He submitted that from the year 2006, the present second defendant had knowledge about the pendency of the suit and the roznama dated 14-3-2008 of the proceedings of the Debt Recovery Tribunal shows that even the writ of summons of the present suit was admittedly served to the second defendant. He, therefore, submitted that no indulgence be shown to the second defendant. 3 4. I have carefully considered the submissions. The original second defendant in the suit was the United Western Bank Limited. In October, 2006 the said Bank amalgamated with the IDBI Bank. In fact, by a separate order passed today on the chamber summons taken out by the plaintiffs, they have been permitted to implead the said IDBI Bank in place of the United Western Bank Limited. Therefore, the present second defendant has been ordered to be impleaded by a separate order passed today. In the circumstances, this Court could have always permitted the newly added defendant to file written statement. 5. It is true that there is some material on the record to show that in the year 2008, the present second defendant had knowledge about the pendency of the suit. However, the right to file written statement cannot be denied to the said newly added second defendant and subject to payment of costs, quantified at Rs.10,000/-, the notice of motion will have to be made absolute. 6. Hence, I pass the following order: 4 (a) The notice of motion is made absolute in terms of prayer clause (a), subject to the condition of the second defendant paying costs of Rs.10,000/- to the plaintiffs within a period of four weeks from today. The payment of costs will be a condition precedent. (b) After compliance is made with the requirement of payment of costs, the written statement shall be filed by the second defendant within a period of four weeks from the date on which compliance is made and no further time will be granted to the second defendant. (A.S. Oka, J.)