1 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 3742 OF 2009 IN SUMMARY SUIT NO. 1893 OF 2007 M/s Rite Inks Corporation .. Plaintiff V/s M/s Harshad Arts & Ors. .. Defendants Mr. K.C. Mehta for the plaintiff. Mrs. A.S. Malvankar for the defendants. CORAM: D.G. KARNIK, J. DATE : 1/4/2010 P.C. : 1. Heard. 2. This motion is taken out by the defendants for setting aside of a decree passed by this Court on 4th March 2009 in Summary Suit No.1893 of 2007. 3. On receipt of the writ of summons, the defendants filed an appearance. The plaintiff thereafter took out Summons for Judgment No.386 of 2007. The defendants did not file any application for leave to defend nor filed any affidavit in reply to the summons for judgment within the statutory period. Consequently, the Court passed a decree on 4th March 2009. 2 4. Learned counsel for the defendants submitted that Mr. Vishwas Tendulkar (the defendant no.3) was ill and underwent a bypass surgery, on account of which he could not apply for leave to defend and that amounts to a sufficient cause. She further submitted that the defendants are willing to pay the amounts in installments and therefore the decree should be set aside and the defendants be granted time to make payment in installments. 5. Under Order 37 Rule 3(5) of the Code of Civil Procedure, a defendant is required to file reply or affidavit disclosing the facts as are sufficient to entitle him to defend, within 10 days of the service of summons for judgment. In order to consider the submission of the counsel for the defendants that on account of the illness of the defendant no.3 the defendants were unable to apply for leave to defend within 10 days, it would be necessary for the defendants to state the date of service of summons for judgment, period during which the defendant no.3 was ill and the date of his bypass surgery. If the defendant no.3 had fallen ill after 10 days of the service of the summons for judgment, that would not be sufficient cause for not filing the affidavit in 10 days. In the notice of motion, 3 the defendants have not stated the date of service of summons for judgment nor stated the period of illness of the defendant no.3 nor stated the date on which he underwent the bypass surgery. Even at the stage of arguments, learned counsel for the defendants was unable to state the date of service of writ of summons, period of illness and the date of the bypass surgery of the defendant no.3 or date of any of the aforesaid three events. In the circumstances, it cannot be said that during the period of 10 days after the service of summons of judgment, the defendants were prevented by sufficient cause from filing the affidavit in reply. 6. Under Order 37 Rule 4 of the Code of Civil Procedure, an exparte decree can be set aside under special circumstances which has been interpreted, to mean that the defendants must not only show sufficient cause for absence but also facts must be disclosed to show that the defendant has an arguable defence to the claim. In view of the fact that the learned counsel for the defendants submitted that the defendants only want time to pay the amount by installments, it is clear that there is no arguable defence available to the defendants. 4 6. For these reasons, the motion is dismissed. (D.G. KARNIK, J.)