1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.394 OF 2007 IN SUIT NO.4602 OF 2000 M/s.Narandas & Sons ..Plaintiff V/s. Sunil Manubhai Majithia ..Defendant Mr.A.M.Mody, Advocate, for the plaintiff Mr.S.H.Mishra, Advocate, for the defendant CORAM : R.M.SAVANT, J. DATE : 19TH NOVEMBER, 2008 P.C. . By the above Motion, the applicant/the original defendant seeks the following reliefs. (a) That the Ex-parte Order and Decree dated 27th April, 2006 in Suit No.4602 of 2000 by His Lordship Mr.Justice S.K.Shah, be recorded to file of the Court and be heard and decided on merit. (b) Pending hearing and final decision of the Notice of Motion, effect, implementation and execution of the Ex-parte Order and Decree passed in Suit No.4602 of 2000 on 27th April, 2006 be stayed. 2 2. It is the case of the defendant that he was served with the proceedings of the case and the Writ of Summons which was received by the defendant and was handed over by him to Advocate S.H.Mishra somewhere in the month of January, 2000. It is further his case that the summons was handed over to him by his family members envelope of which was in torn condition. However, he assured his advocate that he would furnish the case papers which have been received by his family members. It is further the case of the defendant that thereafter he did not contact his advocate due to his personal difficulties since his wife is suffering from Arthritis in both legs and he himself is suffering from diabeties, high blood presssure, weakness & mental depression etc. It is further his case that he enquired with his advocate in January, 2006. Thereafter, in the month of November, 2006 and he acquired knowledge that the above suit was decreed ex-parte on 27th April, 2006. It is further his case that the plaintiff has filed the above suit on the basis of some bills which were raised by the plaintiff for the goods supplied to some other parties and therefore, the claim of the plaintiff is a false claim. 3 3. In the above Notice of Motion, the plaintiff has filed affidavit- in-reply wherein the affidavit in support filed by the defendant has been dealt with and it is contended that the case made out by the defendant cannot be accepted. 4. I have heard the learned counsel for the respective parties. On behalf of the defendant it is sought to be contended relying upon Order IX, Rule 13 of the Code of Civil Procedure, 1908 that the defendant was prevented from appearing in the suit on the date when the above suit was fixed for hearing i.e.27.04.2006. It is submitted that the defendant was facing insurmountable difficulties which had arisen on account of the health of his wife as well as his own health. The learned counsel for the defendant drew my attention to the Medical Certificates annexed to the affidavit in support of the Notice of Motion and submitted that the cause shown by the defendant deserves acceptance. Per contra, it is submitted on behalf of the plaintiff that the instant case is a case of gross negligence and callousness. The learned counsel for the plaintiff submitted that the Writ of Summons was served on the defendant on 21st December, 4 2000 and returnable date mentioned therein was 2nd February, 2001. The defendant was therefore, required to file the Written Statement before the said date. It is further submitted that the plaintiff with a view of an expeditious disposal of the claim had moved the Loknyayalaya held in respect of commercial disputes and inspite of notice being sent to the defendant, the defendant did not choose to appear before the Loknyayalaya. The plaintiff was, therefore, constrained to file Notice of Motion for passing of a decree for want of Written Statement. The said Notice of Motion was also refused to be accepted by the defendant. This Court by Order dated 24th January, 2003 had made the Motion absolute and directed the suit to be placed in the category of undefended suits. The suit thereafter, was placed on 27th April, 2006 when the said ex-parte decree came to be passed. It is, therefore, submitted on behalf of the plaintiff that in the light of the aforesaid facts the reasons cited by the defendant for setting aside the ex-parte decree cannot be accepted. 5. I have considered the rival contentions. The decree passed in the instant suit is ex-parte on account of want of Written Statement. 5 It is significant to note that there is a categorical statement on behalf of the defendant that the defendant was served with the proceedings of the case. There is further an admission that the Writ of Summons was served in as much as the plaintiff has informed his Advocate S.H.Mishra that the Writ of Summons was served in torn envelope and that the defendant would furnish the said S.H.Mishra the necessary papers in the said suit. 6. The case of the plaintiff is that on account of his ill health he could not prosecute the said suit effectively. It would be pertinent to note that the affidavit in support is vague. The decree as mentioned herein above has been passed on 27th April, 2006. The defendant has not mentioned the period in the said affidavit in support during which on account of his illness he was inmobilised. However, the said period can be gathered from the Medical Papers which have been annexed to the affidavit. The said Medical Papers are as regards the Blood Sugar Reports of the defendant, and as the reports indicate that the said test was carried out on 28th September, 2005. Thereafter, there is a Certificate of one Dr.Nitin B. Shah dated 19th 6 December, 2005. The said Medical Papers, therefore, do not relate to the contemporaneous period of the decree. Thereafter, there is a Certificate issued by one NIRMAN HITECH DIAGNOSTIC CENTRE dated 19th August, 2006 which is also much after the decree came to be passed. The Certificates, therefore, do not take the case of the defendant any further as to why the defendant could not appear on 27th April, 2006 when the ex-parte decree came to be passed. The fact of the matter remains that the defendant failed to file his Written Statement inspite of the Writ of Summons being served upon him. On behalf of the defendant a faint attempt is sought to be made by contending that though, the Writ of Summons was served, a copy of the plaint was not served on the defendant. If that be so, nothing prevented the defendant from writing to the advocate for the plaintiff after the receipt of the Writ of Summons or immediately thereafter. The fact that no such a letter was ever addressed makes it clear that the said ground is also an excuse now sought to be given by the defendant for non filing of the Written Statement. The conduct of the defendant in the context of the aforesaid facts appears to be to prevent the plaintiff from recovering the amount due to it, and now the 7 attempt appears to be to stall the execution of the decree which is in favour of the plaintiff. In that view of the matter, no case has been made by the defendant for setting aside the ex-parte decree dated 27th April, 2006. No relief therefore can be granted in the above Notice of Motion. The Motion is accordingly rejected. The defendant to pay costs of Rs.1000/- to the plaintiff to be paid within a period of four weeks from date. (R.M.SAVANT, J.)