1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2602 OF 2008 IN SUMMARY SUIT NO.920 OF 2004 ARAMEX OMDOA (PVT) lTD. ...Plaintiff Vs. BURTON INTERNATIONAL ...Defendant Mr.M.S.Kamthekar for Plaintiff Ms.L.D. Malu for Defendant absent CORAM: SMT.ROSHAN DALVI, J. DATED: 2ND SEPTEMBER, 2008 P.C. 1. A Summons for Judgment was taken out in this Suit and an affidavit in reply came to be filed therein titled “Leave to defend”on 16th October, 2004. This summons for Judgment reached herein. The defendant or his advocate were not present. The Court considered the Plaintiff' s case and the affidavit in reply and passed an order on the Summons for Judgment making it absolute. An Ex-parte Decree came to be passed in terms of the order on the Summons for Judgment. 2 2. The Plaintiff sought to execute that decree. The Defendant realised about the order being passed when the property of the Defendants came to be attached. Hence, this Notice of Motion is taken under the provision of Order XXXVII Rule 4 of the C.P.C. Under the said provision the Court can set aside a decree already passed in Summary suit under special circumstances, if the Court deems it necessary it may stay or set aside the execution and give leave to the Defendant to defend the Suit on any reasonable terms. 3. This provision has been considered by the Supreme Court in the case of Rajni Kumar Vs. Suresh Kumar Malhotra, AIR 2003 SC 1322. observing that the Court would be required to do the following two things for such an application. (i)To stay or set aside execution And (ii)To give leave to defend, to appear on the Summons and to defend the Suit. 4. The Supreme Court has observed the term “Special circumstances not defined in the C.P.C. It would encompass 3 varied and complex circumstances. The Supreme court has observed that the non-service of summons would be a special circumstance. The court has to see whether the circumstances are so unusual or extraordinary, is to justify setting aside the decree, staying the execution or to give leave to the Defendant to defend the Suit. 5. It is further observed in the judgment that if the Defendant was prevented from appearing in the Suit also the decree would be set aside on such terms as to cost or payment in the court as the court thinks fit. 6. The purpose of the order is expediting the hearing and disposal of the Suit. Consequently, it is observed in the judgment that the Defendant must show the Court the circumstances which prevented him from appearing and also the facts which would entitle him leave to Defendant. 7. These two aspects must be considered in this Application. It is the Defendants' case that their Advocate was taking medical treatment and hence, could not contact the Defendants. The Advocate's absence is thus sought to be explained. 4 8. As to the merits of the case, the Defendants have sought to show that the Summary Suit is not maintainable as the suit is not filed on a liquidated amount. The Defendants have admitted the transaction with the Plaintiff. The Defendants have stated in their “leave to defend” application that they used to make payments in cheque. No particulars of the payments are given. The Defendants have contended that the transactions between the parties were on bill to bill basis and never in a running account format. The Defendants have accordingly refuted the Plaintiff' s ledger account statement under which the suit is filed. 9. The Defendants have also contended that the notice of the Plaintiff prior to the filing of the Suit does not furnish the details of the bills, and hence, could not be separately explained. They have also contended that the suit is barred by the Law of Limitation. 10. The plaint shows the Suit having been filed as a Summary suit under the written agreement between the parties under contract forms Exhibit-A & B signed by the Defendants. However, there is no liquidated amount payable under the written contract. Under the contract the Defendants as the Shippers were to send to the Plaintiff a 5 copy of the consignees letter as proof of shipment. Interest at the rate of 25% p.a was agreed to be payable if the bill was not fully settled. 11. The Plaintiffs have relied upon their ledger account statements which show the total amount of Rs.2,82,159/- payable at the foot of that account. One of the bills in the ledger account is dated 31st October, 2001 for Rs.1,19,764/-. There are various such other bills of different dates and showing different amounts in the Ledger Account statements of the Defendants. 12. The plaintiffs have annexed only one bill for Rs.1,19,764/-dated 13th September, 2000. 13. Upon such documents any liquidated amount due under the written contract signed by the Defendants is not seen. Neither the ledger account statements, nor the solitary bill is signed by the Defendants. The precise amount payable is not shown. The principal amount claimed in the Suit is Rs.2,86,393.65, whereas the ledger account shows the total amount of Rs.2,82,159/- payable. The Summary Suit is not strictly maintainable. 6 14. However, it is seen that the plaintiff' s claim has been undoubtedly delayed and Summary Suit has been filed since 2004. The Defendants never cared to keep track of their matter in Court. Hence, the Summons for Judgment was allowed to go by default. The Plaintiffs were constrained to execute the decree. The Defendants only appeared after attachment was levied. The only case made out for nonappearance, is their Advocate's mental health. That would not absolve the Defendants from not attending to their Court matter completely. They are duty bound to inquire from their Advocate about their matters pending in court. Had they done so, they would have been represented either by the same advocate or another Advocate. The special circumstances shown by the Defendants for non-appearance show the unusual case of their Advocate, but also the neglect and default of the Defendants. 15. Since both these aspects are mandatorily to be considered before the order on this Notice of Motion can be passed, the interest of justice would demand deposit of some amount by the Defendants, to be granted leave to defend the Suit rather than re-hear the Summons for Judgment. The Plaintiff's interest would be better served by the conditional order on the Summons for Judgment to allow the 7 Defendants to defend the Suit without causing any further delay to the Plaintiffs. Hence, the following order:- ORDER (i) Upon the Defendants depositing in Court Rs.1,50,000/- within 8 weeks from today the Ex-parte decree dated 3rd October, 2005 shall stand set aside and the execution proceedings which have commenced shall be stayed. (ii)The Plaintiff shall be entitled to withdraw the amount, if deposited, upon furnishing Bank Guarantee to the extent of the withdrawn amount. (iii) If the amount is not deposited, as aforesaid, the Plaintiffs shall be entitled to proceed in execution and this Notice of Motion shall stand dismissed. (SMT. ROSHAN DALVI, J.)