IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.4345 OF 2008 IN SUIT NO.3014 OF 2005 Meghal Homes Pvt.Ltd. & Anr. ... Plaintiffs.

Vs.

Ranganath B. Somani & Ors. ... Defendants.

Mr. Shaikh Yusuf Ali i/b. Mohamedbhai & Co. for the plaintiffs.

Ms. Sonali S.Jain i/b. Dave & Co. for defendant No.1. Mr. Rizvi Naserali i/b. Thakore Jariwala & Associates for defendant No.1.

CORAM : A.A. Sayed, J.

DATE : February 25, 2009.

P.C.

1. This notice of motion has been taken out by the defendant No.1 to set aside order dated 12th February, 2008 passed by the learned Prothonotary and Senior Master setting the matter for ex parte hearing and to condone the delay and take the written statement on file. By that order, since no written statement was filed, the suit was transferred to the list of undefended suits.

2. The plaintiffs have filed suit against the defendants for specific performance of the MOU, dated 11th October,1994 between the plaintiffs and the defendant Nos. 1 to 3, which is kept in escrow with defendant No.4 and for damages in addition to and/or in lieu of the specific performance of the MOU and for other reliefs.

3. By virtue of the said notice of motion, according to the plaintiffs, the defendants are liable and bound to grant and hand over certain controlling block of shares (51%) of the company in liquidation to the plaintiffs together with the right of first refusal for the grant of development rights in respect of the property of the company in liquidation situated at Senapati Bapat Marg, Mumbai.

4. It is the case of the defendant No.1 that he came to know about the suit having been kept for ex parte hearing after 8.10.2008, when his present advocate who is appearing for him in the Company Court proceedings was served with a copy of the Company Application No. 1508 of 2008. It is averred in the affidavit in support of the motion that the defendant No.1 tried to contact his previous advocate Mr. V.K.Sawant at the available address, however, he could not establish contact with him. Accordingly he has appointed the present advocate who has drafted the written statement. It is further averred that defendant No.1 was not informed of the steps to be taken for filing of the written statement by his previous advocate and the matter was left unattended. The learned Counsel submitted that the defendant No.1 should not be made to suffer on account of the negligence of his previous advocate. It is therefore urged that since the written statement is ready and was not filed earlier for the reasons beyond his control and that since the defendant No.1 has a good case on merits and as sufficient cause has been made out, in the interest of justice the motion be allowed.

5. Plaintiff No.2 filed his reply resisting the motion. It is averred in the reply that the writ of summons was served on defendant No.1 as far back as on 6.2.2006 and that the affidavit of service is also filed. It is further averred that the suit was adjourned on several occasions and the period of 90 days to file the written statement expired on 5th May, 2006. The learned Counsel for the plaintiffs stated that no sufficient cause has been made out to condone the delay in filing the written statement. It is further averred that on 29th January, 2008, the learned Prothonotary and Senior Master had granted last and final chance to the defendant No.1 to file written statement. It is stated that the defendant No.1 has not filed written statement since 20 months and therefore by order dated 12.2.2006, the Learned Prothonotary and Senior Master, transferred the suit to the list of undefended suits. It is the case of the plaintiffs that the defendant No.1 with malafide and dishonest intention sought to shift the claim on the earlier advocate. It is therefore submitted by the learned Counsel for the plaintiffs that since the written statement was not filed within 30 days or the extended period of 90 days and since no sufficient cause is made ou