1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1172 OF 2007 IN SUMMARY SUIT NO.2104 OF 2008 RANJANA NEWSPRINT IMPORTS PVT LTD. ..PLAINTIFF VS. MOTHER'S GRAPHICS (INDIA) PVT LTD. ..DEFENDANT Mr. Viraj Maniar for the Plaintiff Mr. Kunal Damle i/b Mr. A.G.Damle for the Defendant CORAM: Smt. ROSHAN DALVI, J. DATED : 8th APRIL, 2009 P.C.: 1. An exparte decree has been passed in the Summary suit. The Defendant has applied to set it aside. The Defendant must show the special circumstances under order 37 Rule 4 of the CPC for setting it aside. This includes the special circumstances for non appearance and on merits. 2. The suit has been filed under the written contract between the parties titled ‘High Seas Sell Contract dated 2 29.06.2005 and the final debit note issued thereunder for the liquidated amount of Rs.14,59,690/-. It is the Defendants case that the legal notice sent for recovery of that amount mentioned in the final debit notice was not replied since no amount is due and payable to the Plaintiff. In the Affidavit in support of the Notice of Motion it is the Defendants case that the amount was not payable under the final debit note but was to be adjusted against the fees of utilizing the import licence. If that was so it necessitated a reply to the demand notice. No reply being sent to the demand notice shows that the Defendants had nothing to state to the Plaintiff’s claim under the final debit note. 3. The Plaintiff got imported certain goods being certain quality paper for the Defendants. The Plaintiffs claim amount under that contract. The Affidavit in support of the Notice of Motion shows that the Defendants made advance payments but no goods were ever received. It also shows that bad quality paper was sent to the Defendants, where as good quality paper was sold to third party. If that was the case the Defendants should have sued the Plaintiffs for recovery of the advance amount paid to the Plaintiff not only is that not done, but the legal notice is also not replied. Hence no defence on 3 merits is shown. 4. For non appearance on the date of hearing it is the case of the Defendant that they handed over the papers to the Advocate and the Advocate did not filed the Vakalatnama. The Defendant has not shown when the vakalatnama was signed by them. Hence even for non appearance no case is made out. Notice of Motion is dismissed. (Smt. Roshan Dalvi, J)