1 mss NMS3536 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 3536 OF 2009 IN SUMMARY SUIT NO. 1165 OF 2008 S. K. OFFICE SOLUTIONS PVT. LTD. .. PLAINTIFF Vs. NOVA AUDIO PVT. LTD. .. DEFENDANT Mr. S. P. Kanuga for the defendant CORAM: S.C.DHARMADHIKARI, J. DATED: 5/12/2011 P.C. This is a notice of motion by the defendant to set aside the ex parte decree that is passed on the summons for judgment in this summary suit. 2. The plaintiff and advocate absent. 3. With the assistance of Shri Kanuga, appearing on behalf of the defendant I have perused the plaint and the annexures thereto. Upon a careful perusal of the plaint, it is apparent that the claim of the plaintiff arises out of running account between the parties which included several 2 mss NMS3536 amounts in relation to the transactions of sale and purchase of goods. The amount is not stated to be confirmed by the defendant. In the affidavit in support of this notice of motion, the defendant has in more places than one stated that the amount claimed is not due and payable. It alleges that several material facts have been suppressed from this court. The defendant has stated in paragraph 8 of the affidavit-in-support that there are special circumstances for setting aside the ex parte decree. 4. The suit is filed on the basis of alleged amount due at the foot of the account. My attention is invited by Shri Kanuga to about 48 sales against which receipts of payments are shown in the account. The opening balance is a debit balance as on 1st April, 2006 at Rs.35,96,137.20. There is no reference as to how this figure is appearing in the statement. There are no details, according to the defendant, of any particular deliveries and invoices. Thus according to the defendant, this is a case of Mutual open and current Account. In answer to paragraphs 8,9 and 10 to 12 of the affidavit-in- support what has been stated in the affidavit-in-reply by the plaintiff is that the suit is maintainable as a summary suit. The material on record shows that the plaintiff has rightly claimed the sum. In paragraph 5 of the affidavit-in-reply to this motion it is stated that it is not in dispute that the plaintiff and defendants had business dealings as a result of which huge 3 mss NMS3536 amounts were due and payable by the defendants to the plaintiff. The balance sheet for the year ended 31st March, 2008 is annexed and is referred to, so as to justify the claim in the suit. However, there is no reference to the balance sheet in the plaint. With regard to the delivery notes it is stated that these are suspicious and they are not signed by the defendant. 5. In fact it is stated that one delivery note which is at page 20 is signed but none of the others are signed by the defendant. One of the delivery challan does not bear the signature of the receiver of the goods and, therefore, delivery note creates ground of suspicion about its authenticity. 6. To my mind, if it was the case of an admitted sum as emerging from the dealings between parties from time to time and crystallized in the books of the defendant as well, then nothing prevented the plaintiff from basing its claim on such an admission and particularly by referring to the balance sheet. In the entire plaint there is no reference to the balance sheet but to the statement of account in the books of the plaintiff. 7. For all these reasons and when the plaintiff and advocate are absent to controvert any of the submission of Shri Kanuga, this is a fit case where special circumstances would justify recalling of the ex parte decree passed in this suit. Accordingly, the order dated 3rd December, 2008 passed decreeing the suit of the plaintiff is recalled and set aside. The defendant is 4 mss NMS3536 entitled to unconditional leave to defend the suit. Suit transferred to the list of Commercial Causes. Written statement be filed within twelve weeks. Discovery and inspection be completed within this period. The Notice of Motion is disposed off in these terms. No costs. (S. C. DHARMADHIKARI, J.)