:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE NOTICE NOTICE OF MOTION NO.2330 OF 2007 OF MOTION NO.2330 OF 2007 OF MOTION NO.2330 OF 2007 IN IN IN SUIT SUIT SUIT NO.597 OF 2004 NO.597 OF 2004 NO.597 OF 2004 Dena Bank .. .. ..plaintiffs V/s Sdhantinath Enterprises and others ..Defendants Mr.P.J.Pandit i/b B.M. Gupta and Associates for the Plaintiffs Mr. S. Dhandge i/b M.D. Jain for the defendant No.4 CORAM ; A.A.SAYED, J. DATE : 30TH JANUARY, 2009 P.C. 1. By this motion, the defendant No.4 seeks to set aside the exparte decree dated 9th April, 2007 passed by this Court in the Summons for Judgment and to condone the delay and allow the defendant No.4 to file his reply by granting him leave to defend the suit. 2. The suit is filed by the plaintiff-bank in respect of recovery of Rs. 6,89,501.15 together with further interest on the principal sum of Rs. 4,84,380/- towards advances which were made by the :2: plaintiff-bank to the partnership Firm of Defendant No.1, of which the defendant No.4 is one of the partners - other two partners being defendant Nos. 2 and 3. The advances given by the plaintiff-bank to the defendant No.1-firm was in respect of the Cash Credit (Hypothecation) Facility. 3. The case of the defendant No. 4 in the affidavit in support of the motion is that he retired from partnership firm in the year 1996. It is stated that at the relevant time when the loan was taken he was no more a partner of the defendant No.1-firm. It is further stated in the affidavit that the signatures appearing on the documents in consideration of the advances made by the plaintiff-bank annexed to the plaint are not his signatures and the same are forged and fabricated and not signed by him. It is stated by the defendant No.4 that he has informed the plaintiff-bank by his letter dated 15-7-2002 that he is no more associated with the defendant No.1-firm. The affidavit also refers to the Summons for Judgment taken out by the plaintiff-bank on 7th February, 2007 and that there was delay in taking out the Summons for Judgment and :3: that the same was not served upon him. It is stated that the Summons for Judgment was made returnable on 23rd March, 2007. On 23rd March, 2007 and on two occasions thereafter, his Advocate remained present, but the matter was not called out. Thereafter, when the matter was on board on 9th April, 2007, his advocate left the Court at about 4.20 p.m. thinking that the matter may not be called out on that day. However on making inquiries in the month of May 2007, his Advocate came to know that the Summons for Judgment was heard and exparte decree has been passed against all defendants, including defendant No.4. In these circumstances, the present notice of motion has been filed under Order 37 Rule 4 of Code of Civil Procedure for setting aside the decree dated 9th April, 2007 and to allow the defendant No.4 to defend the suit by filing reply to Summons for Judgment after condoning the delay. 4. A reply has been filed by the plaintiff-bank interalia setting out the circumstances under which the decree came to be passed. It is stated in the reply that the order dated 9th April, 2007 in Summons for Judgment No. 91/2007 was contested by the :4: defendant No.2 and a reply was also filed by him. It is further stated that the defendant No.4 was duly served with writ of summons and Vakalatnama of the Advocates of defendant No.4 was also filed. It is further stated that the defendant No.4 was also served with the Summons for Judgment. However, the defendant No.4 has chosen not to file any reply to the Summons for Judgment. The learned Counsel for the plaintiff-bank submitted that false pleas have been taken by the defendant No.4 that the Summons for Judgment was not served upon him and that he has ceased to be a partner of the firm at the relevant time when the loan was taken and that the documents in question were not signed by him and therefore on this count alone the notice of motion deserves to be dismissed. The learned Counsel for the plaintiff- bank invited my attention to the various documents in respect of the advances made by the plaintiff-bank, which are annexed to the plaint and where the signatures of defendant No.4 appears. He further took me through the letter dated 15-7-2002 written by defendant No.4 to the plaintiff-bank, wherein for the first time defendant No.4 stated that he is no longer associated with the defendant No.1 firm. :5: 5. I have heard the learned Counsel for the parties and perused the material on record. At the outset it is required to noted that in the affidavit in support of motion in para 3 the defendant NO.4 has averred as follows:- " I say that the said application is signed by other partners of the Defendant No.1 and it "seems" that my signature is forged or fabricated." Further, it is to be noted that though according to the Defendant No.4 he had retired from the defendant No.1 in 1996, by the letter dated 15-07-2002 (Exh.N-1 to the plaint) for the first time the defendant No.4 has intimated to the plaintiff-bank that he is no more associated with the defendant No.1-firm. Pertinently no documents have been relied upon by defendant No.4 to show that he had infact retired from the defendant No.1- firm. In absence of any such document, it is not possible to accept the case of the defendant No.4 that he had retired from the defendant-No.1 firm. 6. Perusal of the record, further reveals that :6: the Summons for Judgment, was infact served upon defendant No.4. The affidavit of service dated 29-3-2007 and annexure thereto clearly bears out the fact that the Summons for Judgment was served upon S.Y. Thorat and M.D. Jain, who were the advocates for the defendant No.4 and who have filed their vakalatnama on behalf of the defendant No.4, sometime on 1st April 2004. It is therefore curious as to how the defendant No.4 avers that he was not served with the Summons for Judgment. Pertinently, in his affidavit in support of the motion he has also stated that he has not been served "properly". 7. It is further significant to note that Summons for Judgment was infact opposed by one of the other partners of the defendant No.1-firm i.e. defendant No.2. The order dated 9th April, 2007 passed by this Court (Dr. D.Y. Chandrachud, J.) in Summons for Judgment No. 91/2007 reflects that one Mr. L.C. Joshi, Advocate has appeared on behalf of the defendant No.2. Moreover, as stated in the affidavit in support of the motion, the advocate on behalf of the defendant No.4 was in Court when the Summons for Judgment was shown on board, but he left the Court at :7: about 4.20 p.m. and the decree came to be passed on that day itself. It is however stated in the affidavit that the Advocate made inquiries only sometime in May, 2007, when inquires would normally have been made on the next day itself to find out what transpired on the previous day and whether the matter was called out or not. Moreover, in absence of any affidavit of the concerned Advocate, I am not at all inclined to believe the story put forth by the defendant No.4. It is also to be noted that present notice of motion is taken out only sometime on 22nd June, 2007. It appears that the notice of motion is taken out as a last ditch attempt to somehow avoid execution of the decree by resorting to false pleas. 8. In the circumstances above, I find that no substance in the notice of motion and no special circumstances have been made out under order 37 rule 4 so as to set aside the order dated 9th April 2007. Consequently, the notice of motion is dismissed with costs quantified at Rs. 5000/- to be paid by the defendant No.4 to the plaintiff- bank within 4 weeks. 9. Notice of Motion stands disposed of. :8: ( A.A. SAYED, J.) A.A. SAYED, J.) A.A. SAYED, J.)