1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.4362 OF 2007 IN SUMMARY SUIT NO.391 OF 2006 Chandanmal V. Jain ...Plaintiff Vs. L.D.Tolia & Ors. ...Defendants Prashant Chande i/b. S.M.Jain for Plaintiff Mr.J.S . Kini i/b. Suresh Jain for Defendants CORAM: SMT.ROSHAN DALVI, J. DATED: 8 TH DECEMBER, 2008 P.C. 1. This Notice of Motion is taken out by the Defendants to set aside the Ex-parte Decree passed on 6th December 2006 in the above Summary Suit under the provisions of Order XXXVII Rule 4 of C.P.C. 2. The Defendant is required to show the special circumstances to set aside the Ex-parte Decree passed. This would be to show why the Defendant did not enter appearance and how he has a substantial defence to the Suit which would require unconditional leave being granted to the Defendant. 2 3. It has been held in the case of Rajni Kumar Vs. Suresh Kumar Malhotra A.I.R 2003 S.C., 1322 that the very purpose of Order XXXVII is to ensure expeditious hearing and disposal of the Suit. It is held that when the Defendant applies for setting aside the decree either because the Defendant did not appear in response to the summons and the limitation period (of 10 days to enter appearance) expired or having entered appearance, he did not apply for leave to defend, the Court is empowered to grant leave to defendant to appear in the summons and to defend the Suit in the same application. It is held that, therefore, it is not enough for the Defendant seeking to set aside the Ex-parte decree to show by way of special circumstances which prevented him from appearing or applying for leave to defend, but also to show the facts which would entitle him to obtain leave to defend. 4. It is the case of the Defendants that they could not enter appearance within a period of limitation of 10 days. Hence they took out the Chamber Summons to condone the delay in entering appearance. 5. Mr.Chande states that the Defendants were served with Writ of Summons on 17 th March 2006. The Chamber 3 Summons has been taken out on 28 th April 2006 for condonation of delay. The Plaintiff has been given notice of this application on 2nd May 2006. Thereafter, nothing was done by the Defendant to bring the Chamber Summons on board for hearing. 6. Mr. Kini states that the Chamber Summons never appeared on board and hence, remained to be argued. 7. The Suit appeared on board on 6th December 2006 and was decreed Ex-parte. Mr. Kini states that the facts of the Chamber Summons was not brought to the notice of the Court and hence the decree must be set aside. 8. The delay in filing appearance can be condoned. However, the Defendants have to show the special circumstances including the merits of his defence as held in the case of Rajini Kumar (supra). 9. The Suit is filed on a written contract as noticed from the Defendants' confirmation of the Defendants' account in the Plaintiff's books to the Plaintiff as on 31st March 2001 and a similar account with interest as on 31 st March 2003. These confirmation statements have been signed by the Defendants. These confirmations show the confirmation of 4 the account of the Defendants to the extent mentioned in the Confirmation Statement as on the date stated therein. These statements, therefore, constitute a written contract between the parties. Being an acknowledgment of the debt, to that extent, they also extend the period of limitation to sue. 10. The Defendants have not disputed the confirmation letter. Paragraph 9 of the affidavit in support of the Notice of Motion taken out by the Defendants shows that there are certain differences in the account between the parties. It further shows that there are “several transactions in cash ” and that “some disputes ” in regard to the entries pending between the parties. 11. Such defence do not take into account the confirmation statement at all. 12. No defence with regard to the confirmation statement is shown. The number of transactions or the extent of disputes, if any, are vague. There is no case on merits of the Plaintiff's case. As per the aforesaid judgment of Rajini Kumar (supra) the Court has to see the merits of the Plaintiff's plea and the Defendants' defence. No defence is shown. The Court would be entitled to consider the basis on which leave would have to be granted to Defendants to 5 defend the suit. Nothing is shown to entitle the Defendants to grant leave to sue based upon the special circumstances on merits. Upon the case made out in paragraph 9 of the affidavit in support of the Notice of Motion no leave to sue could have been granted in the Summons for Judgment. That is the test to determine the Defendants' application under Order XXXVII Rule 4 for setting aside the decree. Assuming that the delay is condoned, the aforesaid defence would be seen in the Summons for Judgment. It would have to be made absolute for want of any defence to the duly signed confirmation statements. 13. No case on merits is shown. The decree passed cannot be set aside. 14. Notice of Motion is dismissed. The Chamber Summons is disposed off accordingly. (SMT. ROSHAN DALVI, J.)