1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.772 OF 2009 IN SUMMONS FOR JUDGMENT NO.44 OF 2008 IN SUMMARY SUIT NO.370 OF 2008 Building Diagnostics & Solutions A Division of N.Z. Guzdar & Co. .... Plaintiffs V/s Yogi Tower Co-operative Housing Society Ltd. .... Defendants. Mr. S. Shamim i/b Shamim & Co. for plaintiff. Mr. C.M. Korde, Senior Counsel with Mr. Daver i/b D.B. Parmar for defendants. CORAM: V.M. KANADE, J. DATE : 30 th September, 2009 P.C.: 1. Heard the learned Senior Counsel appearing on behalf of defendants and the learned Counsel appearing on behalf of plaintiffs. 2. Defendants have taken out this Chamber Summons 2 for setting aside the ex parte order dated 8/4/2009 whereby Chamber Summons No.44 of 2008 which was taken out by plaintiffs was made absolute and the suit was decreed as prayed. 3. Counsel for defendants submits that soon after the Summons for Judgment was filed by plaintiffs, an affidavit in reply was filed by defendants promptly in March, 2008 and, thereafter, almost for a period of one year, the matter did not appear on board and defendants were, during this period, keeping track of the said case and had contacted their advocates from time to time. Plaintiffs filed rejoinder in April 2009. The matter appeared on Board on three dates i.e. on 26/3/2009, 2/4/2009 and 8/4/2009. He submitted that, unfortunately, their attorneys did not inform them about the said dates and, therefore, they could not remain present in Court on the said dates. Their advocate also remained absent. He submitted that defendants are a Co-operative Society and they have good defence in response to the Summons for Judgment which is taken out by plaintiffs. He submitted that defendants, therefore, have good case on merits. He submitted defendants – Society should not be penalized for the lapse on the part of their advocate. He invited my attention to the judgment of the Apex Court in Rafiq and another v. Munshilal and another reported in 3 AIR 1981 SC 1400. He submitted that, under these circumstances, this is a fit case for setting aside the ex parte order and decree passed by the learned Single Judge. 4. Mr. Shamim, the learned Counsel appearing on behalf of plaintiffs firstly submitted that the Chamber Summons is not maintainable since the impugned order which was passed by the learned Single Judge was on merits of the case. He then submitted that plaintiffs had a good case on merits and the learned Single Judge had, after taking into consideration the factual aspects of the case, correctly passed the impugned order. 5. In my view, there is some substance in the submissions made by the learned Senior Counsel appearing on behalf of defendants. It does appear that defendants have promptly filed their appearance soon after the writ of summons was served on them in December, 2007 and immediately within one month from the service of Summons for Judgment, they had filed their detail affidavit in reply setting out their defence. The Society in their reply has stated that an amount of Rs 89 lacs was paid by the erstwhile Committee to plaintiffs and the new Committee had made inquiries by appointing an independent 4 architect who submitted a report that the work to the tune of Rs 35 lacs had been carried out by plaintiffs and, therefore, the balance amount was over paid to plaintiffs by the Society. He further submitted that no notice under section 164 of the Maharashtra Co-operative Societies Act was given to defendants and, therefore, the suit was not maintainable. Defendants, therefore, have pursued the case diligently and, thereafter, almost for a period of one year the matter did not appear on board and, thereafter, on three consecutive dates, defendants’ advocate did not remain present. 6. Taking into consideration these facts, in my view, it cannot be said that defendants were not diligent in pursuing the case and, therefore, the ratio of the said judgment in Rafiq and another (supra) would squarely apply to the facts of the present case. Though, the learned Counsel for plaintiffs pointed out that the Chamber Summons is not maintainable, he was unable to point out any specific rule under which it could be said that this Chamber Summons is not maintainable. The learned Senior Counsel for defendants also invited my attention to the order passed by my brother Karnik, J. in the notice of motion which was taken out by defendants herein wherein an objection was raised by plaintiffs regarding maintainability of the Notice of 5 Motion and, therefore, the said Notice of Motion was allowed to be withdrawn and the present Chamber Summons is filed. So far as other submissions made by the learned Counsel for plaintiffs are concerned, the said submissions pertain to the merits of the case and, therefore, the said submissions which are made cannot be taken into consideration at this stage while hearing this Chamber Summons. 7. Under these circumstances, in my view, defendants have made out a case for setting aside the impugned order. Chamber Summons is allowed in terms of prayer clause (a). Summons for judgment and suit both are restored to the file. 8. Place the Summons for Judgment for hearing on 12/11/2009. 9. Chamber Summons is disposed of. (V.M. KANADE, J.)