1 mss NMS2486 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 2486 OF 2009 IN SUMMONS FOR JUDGMENT NO. 5 OF 2008 IN SUMMARY SUIT NO. 1340 OF 2007 DEEPAK HIRALAL SHAH .. PLAINTIFF Vs. NILESH RASIKLAL WAGHELA .. DEFENDANT Mr. Deepak Chitnis i/b Deepak Chitnis – Chiparikar & Co. for the plaintiff Mr. D. U. Siroya for the defendants CORAM: S.C.DHARMADHIKARI, J. DATED: 5/12/2011 P.C. This is an application to set aside, what according to the defendant, is an ex parte order, on the summons for judgment. 2 mss NMS2486 2. On 10th of June, 2009, Summons for Judgment No. 5 of 2008 in this summary suit was placed before a learned Single Judge of this court of Smt. Roshan Dalvi, J. She, after hearing the plaintiff’s advocate and perusing the record including the defence of the defendant, has passed a decree in the summary suit. It is clear from a reading of the order that the court has referred to the stand taken by the defendant that the claim in the suit is barred by limitation. That contention has been rejected. 3. It is now futile to urge that this is an ex parte order. Merely because below the title and names in the order, only appearance of the plaintiff is mentioned, does not mean, that the defendant was absent or that his defence was not considered or his contentions have not been noted and taken cognizance of. The order clearly shows that each of the objections including pending of complaint under Section 138 of the Negotiable Instrument Act, 1886 have been duly considered. Even if, they are considered erroneously, according to the defendant, in the facts and circumstances of the present case when the suit is decreed the remedy of the defendant is not to file this application but to seek appropriate relief to challenge the decree. 4. Leaving open such course in law for the defendant and even keeping 3 mss NMS2486 his contentions alive, this notice of motion is dismissed but without any order as to costs. (S. C. DHARMADHIKARI, J.)