1 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 557 OF 2005 IN SUMMARY SUIT NO. 4808 OF 1999 Francis D’Souza .. Plaintiff V/s Bharat Seksaria .. Defendant Ms. J.A. Sarkar i/b Nina Chaugule & Associates for the plaintiff. Ms. S.R. Delmade i/b Goenka Law Associates for the defendant. CORAM : D.G. KARNIK, J. DATE : 2ND MAY 2009 ORAL ORDER: 1. Heard learned counsel for the parties. 2. This chamber summons is taken out by the defendant for setting aside an exparte decree dated 20th June 2000 passed by this Court in Summary Suit No.4808 of 1999. 2 3. Learned counsel for the plaintiff strongly opposes the chamber summons. She firstly submits that an application for setting aside an exparte decree in a summary suit can be made only by means of a notice of motion and not by means of a chamber summons. Since the present application is taken out in the form of a chamber summons, it is not maintainable and is liable to be dismissed. Per contra, learned counsel for the defendant submits that the application is properly taken out in the form of a chamber summons and the application for setting aside an exparte decree has to be made by a chamber summons and not by a notice of motion. 4. Under the Bombay High Court (Original Side) Rules (for short "the Rules"), all applications to the Court are to be made either by way of chamber summons or notice of motion. Rule 121 of the Rules enumerates the applications which are to be made by a chamber summons and Rule 142 enumerates the applications which are to be made by a notice of motion. Rule 142 says that applications for injunction, receiver, attachment before judgment, arrest before judgment and other interim relief in a suit, matter or appeal and all applications other than those which are required to be disposed off by a judge in chambers shall be made in court by a notice of motion. Perusal of Rules 121 and 142 shows that both contains a residuary clause. Residuary clause 38 of Rule 121 reads thus: 3 “ (38) Such other matters as are not expressly required to be disposed of in Court and which the Judge thinks fit to be heard in Chambers and such other applications as are under the rules directed to be made in Chambers.” Sub-rule (1) of Rule 142, after enumerating the applications which are to be taken out by a notice of motion, contains a residuary clause which reads thus:- “ ..... and all applications other than those which are required to be disposed of by a Judge in Chambers..” The two residuary clause must be harmoniously construed. The words “all other applications other than those which are required to be disposed of by a Judge in Chambers” appearing in Rule 142 would take their colour from the earlier words used by the rule of ejusdem generis. Therefore, all other applications which have been mentioned in Rule 142 like applications for injunction, receiver, attachment before judgment and arrest before judgment and other applications for interim relief within the residuary clause in Rule 142 should be construed to cover only interim applications to be made in a suit matter or appeal. The applications which are not in the nature of applications for interim relief in a suit matter or appeal would fall outside Rule 142 and would be covered by clause 38 of Rule 121 of the Rules. Clause 38 of Rule 121 is a general residuary clause covering all applications other than the applications specifically 4 mentioned in Rule 142 and applications for any interim relief in any suit, matter or appeal. Clause 38 of Rule 121 is quite wide. It covers all matters except those which are not expressly required to be disposed of in Court and also includes all matters which the Judge thinks it fit to be heard in Chambers. No restriction on a power of a Court to hear a matter in Chamber was pointed out to me as specified in the Rule. The Rules do not prohibit a Judge from hearing any matter in Chamber. Thus viewed also, if a Judge chooses to hear an application for setting aside an exparte decree in Chamber, there is no prohibition on him to do so. In that view of the matter, an application for setting aside an exparte decree would be covered by clause 38 of Rule 121 of the Rules. 5. No direct decision of the Court was cited on whether an application for setting aside an exparte decree can be made by a chamber summons or by a notice of motion. In an unreported decision, Dhanuka J. has held that an application for setting aside an exparte decree cannot be made by a notice of motion but by a chamber summons. Reference to the decision of Dhanuka J. is found in the Industrial Credit & Investment Corporation of India v. Sharad Khanna, 1994 (3) Bom C.R. 449. That was a case where the chamber summons was taken out by the defendant for setting aside an exparte decree. An objection was raised that an application for setting aside the exparte decree cannot be made by chamber summons but has to be made by a notice of motion. After referring to the decision of 5 Dhanuka, J. in para 2(o) thereof, the Court dismissed the chamber summons on merits. 6. Learned counsel for the plaintiff referred to my earlier decision in Eskay Enterprises v. Suresh P. Hinduja, 2005 (3) Mh. L.J. 620, in which a notice of motion taken out by the defendant for setting aside an exparte decree was considered and dismissed on merits. Needless to say that in that case the issue whether an application for setting aside the exparte decree can be made by means of a notice of motion or a chamber summons was not raised and was not considered. Strictly speaking, though an application for setting aside an exparte decree would be in the form of a chamber summons, the practice of this Court has been to entertain such an application both by a chamber summons and a notice of motion. This is perhaps because of a settled principle of law that rules of procedure are hand-maid of for justice. The format of an application, whether a chamber summons or a notice of motion, in today’s context is fast loosing relevance. Hardly any chamber summons is heard by a judge in chambers. Almost invariably all chamber summonses are heard in the Court and not in the chambers. Thus, the line of distinction between the chamber summons and the notice of motion has really become very thin. In any event, I am not inclined to dismiss the application for setting aside an exparte decree on the hyper technical ground that the application should have been made by a notice of motion and not by a chamber summons. 6 7. Learned counsel for the plaintiff submitted that there is a distinction between an application for setting aside an exparte decree passed in a summary suit and an application for setting aside an exparte decree passed in an ordinary suit. An application for setting aside an exparte decree passed in an ordinary suit is made under Order 9 Rule 13 of the Code wherein the defendant is only required to prove that there was sufficient cause for his absence on the date of hearing. However, an application for setting aside an exparte decree passed in a summary suit is not made under Order 9 Rule 13 of the Code but is required to be made under Order 37 Rule 4 of the Code wherein the defendant is required to plead and prove existence of special circumstances, i.e. he has not only to prove sufficient cause for absence but has also to prove existence of a good defence to the suit. In Rajni Kumar v. Suresh Kumar Malhotra, (2003) 5 SCC 315, the Supreme Court has held that when an application is made under Order 37 Rule 4 of the Code by the defendant for setting aside an exparte decree, he is required to prove special circumstances. While interpreting the meaning of special circumstances, the Supreme Court has held that the defendant is required to show that he has a good or reasonably plausible defence to the suit. The submission of the learned counsel is therefore accepted. 8. On the facts of the case, I am satisfied that the defendant has made out a plausible and reasonable defence to the suit. The plaintiff 7 had filed the suit alleging that he had advanced a loan of Rs.42,00,000/- to the defendant and after adjusting part payment made by the defendant, a sum of Rs.18,12,424/- was due and payable by him. In the affidavit in support of the chamber summons, the defendant has stated that only a sum of Rs.2,00,000/- was due and payable to the plaintiff, and after receipt of the summons for judgment, he went to the plaintiff and pointed out that only Rs.2,00,000/- was due and he paid the sum of Rs.2,00,000/- to the plaintiff. The plaintiff assured him that he would withdraw the suit. The defendant believed the plaintiff and did not defend the suit. The defendant has produced on record an extract of general ledger in the books of account for the year 1988-89. The extract is at Exhibit-C to the affidavit. The extract bears the signatures of both the plaintiff and the defendant and shows that Rs.7,00,000/- was due and payable by the defendant to the plaintiff at the end of the year 1988-89. He has also produced at Exhibit-D to the affidavit a copy of the ledger extract for the year 1999-2000 ending 31st March 2000. That extract is also signed by the plaintiff and the defendant and shows that only a sum of Rs.2,00,000/- was due and payable by the defendant to the plaintiff at the end of 31st March 2000. There is no dispute between the parties that the extract at Exhibits C and D bear the signatures of the defendant as well as the plaintiff. In the affidavit in reply the plaintiff has admitted his signatures but has contended that the ledgers were signed for income tax purposes. If the plaintiff admitted that the sum of Rs.2,00,000/- only was due at the end of 31st March 8 2000, then obviously the defendant would have a reasonable defence to the claim for Rs.18,02,000/-. In my view, the defendant has therefore made out a reasonable and plausible defence and has made out a special circumstance for setting aside of an exparte decree 9. For the reasons mentioned above, the exparte decree dated 20th June 2000 is set aside and the chamber summons is allowed in terms of prayer clause (a). The defendant is also granted unconditional leave to defend the suit. The defendant shall file the written statement within 8 weeks. On the defendant filing the written statement, the suit shall stand transferred to the list of commercial causes. (D.G. KARNIK, J.)