1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL (L) NO.734 OF 2008 IN NOTICE OF MOTION NO.3456 OF 2008 IN SUMMARY SUIT NO.1721 OF 2001 Mr. Devang Jitendra Sarvaiya and others .. Appellants Vs. Mr. Hatim Suterwalla and others .. Respondents Mr. U.J. Makhija i/by Mr. Ashok Purohit for the appellants. Mr. Kishore Jain with Mr. Gaurang Mehta for the respondents. CORAM : SWATANTER KUMAR, C.J. & S.A. BOBDE, J. DATED : 12TH DECEMBER, 2008 P.C. The present appeal is directed against the order passed by the learned Single Judge dated 26th November, 2008 vide which Notice of Motion No.3456 of 2008 taken out by the present appellants for extension of time to deposit the amount in terms of the order dated 6.9.2005. While relying upon the provisions of Order XXXVII Rule 4 of the Civil Procedure Code, the learned counsel for the appellants 2 contends that they had made out special circumstances for recalling or setting aside the judgment and decree of the court dated 9th April, 2007. The exceptional circumstances shown were that the partner of the appellants who was pursuing the litigation had not informed all the concerned persons and also that he had suffered heart attack and for these and other reasons they were not able to comply with the order of the court. It is also averred that the appellants and other judgment debtors came to know about the decree in the insolvency proceedings and, therefore, there was delay in complying with the order. Suffice it to note that a summary suit was instituted for which the plaintiff had taken out Summons for Judgment and this application was disposed of by the order of the court dated 6.8.2005 directing the defendant Nos.2,5 and 7 to deposit an amount of Rs.30,00,000/- within four weeks and conditional leave to defend on those terms was granted. The time granted came to an end on 5th October, 2005. Aggrieved from the order of grant of conditional leave, the appellants had preferred an appeal before the Division Bench which was disposed of vide order dated 19th October, 2005 and the court further extended the time by four weeks for deposit of the said amount and declined to 3 interfere on merits. This amount was not deposited. As a result of default, the court passed decree on 9th April, 2007. This decree has not been questioned till today. 2. The appellants thereafter filed the present notice of motion praying for extension of time for deposit of the amount and for setting aside the judgment and decree of the court dated 9th April, 2007. This notice of motion was dismissed. Aggrieved therefrom, the present appeal has been filed. 3. Firstly, the reasons stated by the appellants do not constitute exceptional or special circumstances as contemplated under the provisions of Order XXXVII Rule 4 of the Civil Procedure Code. Furthermore, the conduct of the appellants itself is not diligent to seek judicial discretion as the appellants have been waiting all through and taking proceedings at their convenience. The learned Single Judge has exercised judicial discretion which is apparently in consonance with the settled principles of law. When the First Appeal being First Appeal (L) No.1016 of 2005 was filed before the Division Bench, the grounds now stated in the application were not even taken and therefore, these grounds seem to be an after thought. There is 4 hardly any justification for not depositing the amount in question much less the appellants have been able to make out special circumstances. The appellants had issued cheque for the said amount which has not been honoured after presentation. The suit is one which is based upon negotiable instrument but we are not expected to travel into the merits of the case inasmuch as judgment and decree dated 9th April, 2007 has not been questioned even today. No merit. Dismissed. CHIEF JUSTICE S.A. BOBDE, J.