1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3712 OF 2010 IN SUMMARY SUIT NO.1969 OF 2008 Dattatray Maruti Kale Plaintiff versus Krishna Ramchandra Ghare and another Defendants Mr.Ramesh Jain for plaintiff. Mr.S.N.Deshpande for defendant no.1. CORAM : S.J.KATHAWALLA, J. DATE : 28th March 2011 PC : 1. By this Notice of Motion the defendant no.1 has prayed that the ex- parte decree dated 15th December 2008 passed in Summary Suit No. 1969 of 2008 be set aside and consequently the execution proceedings instituted by the plaintiff vide Execution Application No.939 of 2009 also be set aside. 2. The above suit was filed on a bill of exchange of which defendant no.1 is the drawer and the defendant no.2 is the acceptor. Though the writ of summons was served on the defendants, they failed to come forward to defend the suit. In view thereof, a decree was passed against the defendants by this Court on 15th December 2008 as prayed in the suit. After almost two years i.e. in August 2010 the defendant no.1 took out the present Notice of Motion seeking the above reliefs. 3. In support of the prayer seeking setting aside of the ex-parte decree and stay of the execution proceedings, the first and the most important requirement is to show cause as to why the defendant no.1 did 2 not take any steps to defend the suit though the writ of summons was served on him in August 2008. The merits of the case have to be considered only after the party satisfies the Court that there existed sufficient cause for non-appearance before the Court at the time of passing the ex-parte Decree. 4. In the present case the defendant no.1 in the affidavit-in- support of Notice of Motion has admitted that he has received the writ of summons in August 2008. He has alleged that thereafter he approached an Advocate by the name of Mr.Salgaonkar. The said Advocate Mr.Salgaonkar informed him that he would appear on his behalf in the said case and also charged Rs.5,000/- to the defendant no.1 for the same. It is further contended that the said Advocate Mr.Salgaonkar had taken signature of defendant no.1 on the Vakalatnama and some other papers. Defendant no.1 has further stated on oath that thereafter he was frequently making inquiries with Advocate Mr.Salgaonkar who used to inform him that he should not worry and whenever his presence is required, he would inform him about the same. According to the defendant no.1 when he received his wages for the month of October 2009 he found that his wages were deducted against remark "Court of Sheriff -Rs.8,463/-". Hence, he approached his employer who informed him that they have received a letter from the Bombay High Court pursuant to which the deduction is made and will continue to be made. The defendant no.1 has stated on oath that he immediately contacted his Advocate who appeared to be surprised by the said deduction of wages and he informed the defendant no.1 that he would make inquiries in the High Court. However, even after 2 to 3 months he could not stop the deductions from the wages. Ultimately in June 2010 Advocate Mr.Salgaonkar told the defendant no.1 that he was not practicing in High Court and that he had assigned the matter to some other Advocate and that Advocate did nothing. The defendant no.1 has further stated on oath that Advocate Salgaonkar returned Rs.5,000/- to him and told him to go to some other Advocate. Accordingly, he approached his present Advocate 3 who has taken out the present Notice of Motion. 5. The present Notice of Motion was before this Court for hearing on 18th March 2011. At that time defendant no.1 was present in Court with his Advocate. After going through the affidavit in support of the Notice of Motion, this Court gathered an impression that the story spun by the defendant no.1 in his affidavit does not appear to be true. This Court therefore asked the defendant no.1 and his Advocate to provide the address and telephone number of said Advocate Salgaonkar who had allegedly put the defendant no.1 in serious trouble. Time was taken by the defendant no.1 as well as his Advocate to do so. The matter was therefore adjourned to 21st March 2011, first on board. 6. On 21st March 2011 the Advocate for the defendant no.1 informed the Court that his client needs some more time to provide the address and telephone numbers of Advocate Salgaonkar. In view thereof the matter was adjourned to 28th March 2011 i.e. today. Today the learned Advocate for the defendant no.1 informs the Court that the defendant no.1 is unable to get the address and telephone numbers of Advocate Salgaonkar and that the Court should hear him on merits and pass necessary orders. In view thereof, the defendant no.1 was called in the witness box and this Court inquired from him as to where and when he was having meetings with the said Advocate Salgaonkar. In response, for the first time the defendant no.1 has today alleged that there was no Advocate by name of Mr.Salgaonkar. He had met one person called Mr.Salgaonkar near Bori Bunder who had agreed to take care of his case. He states that he is not having the telephone number of Mr. Salgaonkar since he had never contacted the said Mr.Salgaonkar but it was Mr.Salgaonkar who was contacting him. He has further informed the Court that he has not met Mr.Salgaonkar on more than two occasions. Since it was evident that the defendant no.1 is even today making false statements before the Court this Court drew the attention of defendant no.1 to paragraphs 8 and 9 of his affidavit in support of the Notice of Motion wherein he has stated that 4 "Further I then approached an Advocate by name Shri Sangaonkar. .............. Thereafter also frequently I was making inquiry with him and he used to tell me that I should not worry and that whenever my presence would be required, he would inform me. ............ Shri Tulaskar told me that they had received order from High Court and accordingly there was deduction in wages and such deduction would continue. Hence immediately I contacted my Advocate who appeared to be surprised by deduction of wages ..............." This Court inquired from the defendant no.1 as to why he has stated in his affidavit that he was frequently making inquiries with Mr.Salgaonkar and even after he came to know about the deduction from his salary he immediately contacted Mr. Salgaonkar and also allegedly received refund of fees from Mr. Salgaonkar. To this, the Defendant No.1 has no answer. 7. From the aforesaid facts I am convinced that there was no Mr.Salgaonkar, Advocate or otherwise to whom the Defendant had entrusted his Suit. It is only for the purpose of moving this Court with the present Application that an imaginary character by name of Mr.Salgaonkar was introduced by the Defendant No.1 before this Court. The defendant no.1 had not expected that this Court will ask for the particulars of the so called Mr.Salgaonkar. However, when this Court realized that the story put before this Court was not convincing, the Court asked for the address and telephone numbers of Advocate Mr.Salgaokar. This inquiry has put the Defendant in a fix who has approached the Court with a totally false case. Since the entire story of the defendant no.1 is imaginary and incorrect he has now taken a stand before this Court that there was no Advocate by the name of Mr.Salgaonkar and he is not in possession of his address or telephone numbers. Even if the individual named in the affidavit was not an Advocate from the statements made in the affidavit in support of the Notice of Motion that the defendant no.1 frequently contacted Mr. Salgaonkar and the statement now made by the Defendant No.1 (when Defendant No.1 is called upon to give the address and telephone number of Mr.Salgaonkar) that he never contacted 5 Mr.Salgaonkar and it was Mr.Salgaonkar who was contacting him, establishes beyond any doubt that the defendant no.1 has made false and dishonest statements in his affidavit in support of the Notice of Motion, with the intention of misleading the Court and obtaining orders in his favour. In view thereof on this ground alone the Notice of Motion is dismissed with costs. (S.J.KATHAWALLA, J.)