- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.96 OF 2008 IN SUMMONS FOR JUDGMENT NO.523 OF 2006 IN SUMMARY SUIT NO.2302 OF 2006 Supreme Alloys Industries & Ors. .. Appellants (Org.Defendants) Vs. Ganpatlal Mangilal Jain. .. Respondent (Org.Plaintiff) -- Shri Suneet Maholkar with Ms Ratrani Roy i/b Roys Law Firm for the appellants. Shri G.M.Jain, Respondent in person. -- CORAM : SRI R.M.S.KHANDEPARKAR & SRI A.V.NIRGUDE, JJ DATED : 16TH APRIL, 2008 P.C. 1. Heard. This appeal arises from the judgment and order dated 16th January, 2007 passed by the learned Single Judge decreeing the summary suit. The learned Single Judge in the impugned judgment and order has clearly observed that the appellants were duly served with the summons for judgment on 7th December, 2006 and yet they did not take any step to - 2 - seek leave to defend the suit as it was otherwise required to be done under Order XXXVII of the Code of Civil Procedure, 1908 within 10 days from the service of summons for judgment. When the matter came up for hearing on 7th December, 2007 before the learned Single Judge, the advocate appearing for the appellants orally sought time to seek leave to defend which was rejected and the Court proceeded to dispose of the suit. 2. Provisions of Order XXXVII of the Code of Civil Procedure are very clear as to the steps to which the parties are required to take within the specified time, once the proceedings under the said Order commence before the Court. It is pertinent to note that inspite of the fact that the appellant had failed to take necessary steps within 10 days from the date of service of summons for judgment to seek leave to defend the suit, if at all they wanted to contest the matter, when they appeared before the Court on the date of hearing on 16th January, 2007, they could have filed an application or an affidavit to make out a case so as to justify delay in seeking leave to defend the suit. It was sought to be contended before us that the learned advocate appearing for the defendant had orally submitted that the daughter of one of the - 3 - appellants was seriously ill in Lilavati Hospital, and therefore, steps could not be taken within time. Whether the daughter was really sick or not is not the question of law but it is a question of fact. Being so, it was absolutely necessary for the parties to bring such fact on record by adopting procedure known to law and not by making mere submission across the bar in that regard, if at all, the appellants wanted the learned Single Judge to exercise its discretion under Rule 3(7) of Order XXXVII of the Code of Civil Procedure. Once the records nowhere disclose any such procedure having been adopted by the appellants, no fault can be found with the impugned judgment and order whereby the learned Single Judge proceeded to dispose of the matter bearing in mind the fact that the proceedings were under Order XXXVII of the Code and the parties were required to strictly adhere to the procedure prescribed thereunder. 3. Even as an exception to the rule, when the matter came up before us, the learned advocate appearing for the appellants was asked as to whether the appellants would be ready to deposit any substantial amount out of the decretal amount. However, the only offer which came from the appellants was to the extent of Rs.2 lakhs and/or security to the - 4 - extent of Rs.5 lakhs. In our considered opinion, such an offer, in case of decree for more than 30 lakhs, cannot be sufficient to justify interference in the impugned judgment and order which does not disclose any illegality or irregularity. 4. In the circumstances, as there is no case made out for interference in the impugned judgment and order, the appeal is liable to be dismissed summarily and is hereby dismissed accordingly. ( R.M.S.KHANDEPARKAR, J ) ( A.V.NIRGUDE, J )