1 mss NMS2097 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 2097 OF 2009 IN SUMMARY SUIT NO. 559 OF 2006 MAHAVIRPRASAD JANGID .. PLAINTIFF Vs. CELES JOSEPH .. DEFENDANT Mr. Sachin Joshi i/b M. G. Mimani for the plaintiff Mr. Rohit Kurmi i/b Digvijay Singh for defendant CORAM: S.C.DHARMADHIKARI, J. DATED: 5/12/2011 P.C. Heard. 2. This is a notice of motion for setting aside the ex parte decree in a summary suit. 3. Learned advocate appearing on behalf of the defendant has taken me through the affidavit-in-support of this notice of motion and has submitted that the decree should be set aside because firstly writ of summons was not 2 mss NMS2097 served on the defendant. Secondly the claim of the plaintiff is arising out of some repair work which was carried out on the defendant’s property / flat. The defendant has ;paid substantial sums including in cash for which receipts have been given and these amounts have not been acknowledged or accounted for by the plaintiff. 4. The plaintiff’s claim is highly inflated. He firstly gave a bill of Rs.42,460/- and later on he claimed Rs.44,530/-. There is a great difference between the two bills which have been raised and, therefore, there are triable issues enabling this defendant to defend this suit unconditionally. 5. On the other hand it is argued on behalf of the plaintiff that what the defendant is urging is that there is no acknowledgment or admission of the liability to pay the sum as claimed. The suit is based on the written contract as evidenced by the document annexed to the plaint. In fact in the plaint itself it is set out that the plaintiff has received a sum of Rs.5,000/- on 10th February, 2004, a sum of Rs.6,000/- on 22nd February, 2004 and a sum of Rs.1,000/- thereafter, which has been accounted for. Thus these part- payments are a clear acknowledgment or admission of the liability. For all these reasons there is nothing made out for setting aside the ex parte decree. 6. After having heard both sides and perusing with their assistance, the plaint and the annexures, so also the affidavits-in-support of the present 3 mss NMS2097 motion and reply, I am of the opinion, that the defendant has to make out a special case for setting aside the decree passed in summary suit. Merely saying that the writ of summons was not served is not enough. That apart, the order passed on 6th December, 2006 proceeds on the basis that the writ of summons has been served. 7. In the affidavit-in-support of this notice of motion also, the defendant does not say that he has no knowledge of the proceedings or institution of the suit. The contents of paragraphs 16 and 17 of the affidavit-in-support would show that the defendant had knowledge of institution of the proceedings and particularly this summary suit. He has also received the writ of summons as is evident by his vague and general pleas. Further his version that he has paid several sums in cash which have not been accounted for also prima facie appears to be belated version because, if several sums paid in cash have not been accounted for, as an ordinary and prudent businessman, the defendant would not file an appropriate proceedings or in clearest terms refute the demand. 8. After hearing both sides on the merits of the plaintiff’s claim, I am satisfied that interest of justice would be served, if the ex parte decree passed against the defendant is set aside on the condition that the defendant deposits in this court a sum of Rs.25,000/- within a period of two weeks 4 mss NMS2097 from the date of receipt of copy of this order. 9. If the amount is deposited the same shall be invested by the Registry of this court. Thereafter the defendant can file a written statement which shall be filed within a period of eight weeks from the date of such deposit. 10. Needless to clarify that on failure of the defendant to deposit this sum in court this notice of motion to stand dismissed without any further reference to court and thereafter ex parte decree can be executed in accordance with law. (S. C. DHARMADHIKARI, J.)