-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Notice of motion no. 4070 of 2005 in Summons for Judgment no. 433 of 2004 in Summary suit no. 1151 of 2004 Renu K. Bhatia : Plaintiff v/s Kishan Loungani : Defendant None for plaintiff Mr. Yashpal Jain for defendant Coram : S.J. Kathawalla, J. P.C. 14th November, 2008 . This notice of motion was called out for hearing in the morning session when none appeared for the plaintiff. It was, therefore, directed that the matter would be taken up at 3.00 p.m. The Advocate for the defendant was also directed to inform the office of Mr.V.M.Talreja, Advocate for the plaintiff that the matter would be taken up at 3.00 p.m. At 3.00 p.m. the notice of motion is once again called out for hearing when the Advocate for the defendant has informed the Court that he has left the message with the office of Mr.V.M.Talreja that the Notice of Motion would be taken up by this Court at 3.00 p.m. for hearing. However, none appeares for the plaintiff. This Court, therefore, is constrained to proceed with the hearing of the Notice of Motion in -2- the absence of the plaintiff and/or her Advocate. 2. This Notice of Motion is taken out by the defendant for setting aside the exparte decree dated 22nd August, 2005 in Summons for JudgmentNo.433 of 2004 in Summary Suit No.1151 of 2004 passed by this Court (Coram: S.J.Vazifdar J.). 3. In the affidavit in support of the Notice of Motion, the defendant has inter alia submitted that the exparte decree is passed on the basis that the defendant has not filed any affidavit in reply. It is pointed out that the defendant had in fact filed the affidavit in reply dated 11th August, 2005 on 17th August, 2005. It is also pointed out by the defendant that in the exparte order it is stated that certain part payments were made by the defendant to the plaintiff and that some cheques drawn by the defendants were dishonoured. The defendant has further pointed out that no such payments have been made and no cheques drawn by the defendant were dishonoured. 4. The defendant after taking out this notice of motion moved before this court for ad-interim reliefs in terms of prayer clause (c). By order dt. 24th -3- December, 2005 this court (Coram S.J. Vazifdar,J) has recorded : "It appears that an affidavit in reply had been filed. The orders sought to be set aside was passed on the basis that there was no affidavit in reply." The defendant has also explained in the affidavit in support of the motion as to why the advocate for the defendant could not remain present before this court on 22.8.2005 when the above exparte decree was passed. 5. In view what is stated aforesaid and in view of the reasons set out in the affidavit in support of the notice of motion I am satisfied that the defendant has made out a reasonable and satisfactory case for setting aside the exparte decree dated 22nd August, 2005 passed in Summons for Judgment No.433 of 2004 in Summary Suit No.1151 of 2004. In view thereof the exparte decre dated 22nd August 2005 passed in Summons for Judgment No.433 of 2004 in Summary Suit No.1151 of 2004 is set aside and the summons for judgment no. 433/04 is restored to file. Order accordingly. Notice of motion is, therefore, disposed of with no orders as to cost. (S.J. Kathawalla,J.)