1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.61 OF 2007 IN NOTICE OF MOTION NO.857 OF 2006 IN SUMMONS FOR JUDGMENT NO.568 OF 2004 IN SUMMARY SUIT NO.1280 OF 2003 M/s Crystal Audio Ltd. ...Appellants v/s M/s Videocon International Ltd. ...Respondents Mr Rohit Kapadia, Sr Counsel i/b Mr Y.N. Adhiya for Appellants. Mr R.D. Soni with Mr M.A. Sayed i/b M/s Ram and Co. for Respondents. CORAM : D.K. DESHMUKH AND SMT R.P. SONDURBALDOTA JJ. DATE : 30TH JUNE 2010. 2 P.C. :- 1] This appeal takes exception to the order dated 18th December 2006 passed by the learned Single Judge of this Court in notice of motion No. 857 of 2006. Summary suit No.1280 of 2003 was filed by the respondents seeking money decree against the present appellants. The suit was based on cheques which were issued by the appellant Company and which were dishonoured. In that suit, a summons for judgment was taken out, reply was filed by the appellant defendant. After considering that reply, the learned Single Judge of this Court by order dated 14th September 2005 recorded that there is no defence disclosed. Summons for judgment was therefore made absolute in favour of the plaintiffs. The defendants  appellants then took out notice of motion No.857 of 2006 under Order 37 Rule 4 of C.P.C. For setting aside the decree on the ground that after the decree was passed, the appellants have discovered some documents which show that they had a good defence available to them. The learned 3 Single Judge of this Court disposed off that notice of motion by order dated 18th December 2006. The present appeal is directed against that order. We have heard learned counsel for both the sides. 2] The learned counsel appearing for appellants submits that a notice of motion for setting aside the decree passed in summary suit is maintainable under Order 37 Rule 4 C.P.C. if the defendant discovers some documents which show that he had good defence. Relying on the judgment of Division Bench of this Court in the case of Sureshkumar Kanhaiyalal Jethlia v/s State of Maharashtra and others, reported in AIR 2001 Bombay 438, the learned counsel submits that if the order results in miscarriage of justice considering the material produced, then the Court can set aside the decree in exercise of its power under Order 37 Rule 4 of C.P.C. We have heard the learned counsel appearing for respondents. The appellants have not been able to satisfy us that by exercise of due diligence, they could not have discovered the 4 document on which they are now relying when they filed their affidavit in the summons for judgment. In our opinion, the case of the appellants that they, after the decree was passed, appointed a lawyer to go through the record and that lawyer discovered these documents, cannot be accepted unless the appellants give an explanation as to why they did not undertake this exercise after they received the writ of summons and summons for judgment. What we find from the record is that the learned Single Judge, while disposing off the notice of motion, has considered the documents on which the appellants relied. The learned counsel appearing for respondents submitted that the only reason why the appellants had come up with such an application is that the appellants are not in a position to pay the amount. It is submitted that the appellant is a Company which is listed on Bombay Stock Exchange and that the company petition for its winding up on the ground that it is not in a position to pay its debts has already been admitted by the learned Single Judge of this Court and appeal against that order 5 has also been dismissed. Therefore, to test the bonafides of the appellants, we put it to the learned counsel appearing for appellants that the amount of principal is in excess of Rs.46,00,000/-, therefore if the appellants deposit the amount of Rs.30,00,000/- in Court, we will consider their request so that their new defence could be considered in the summons for judgment. The learned counsel appearing for respondents also agreed to this suggestion. The learned counsel appearing for appellants took time to take instructions and today he states that the main person behind the appellant Company is sick and therefore, he could not get the instructions. In our opinion, this shows that there is substance in the statement made on behalf of the plaintiffs that the appellants really are not in a position to pay the amount and therefore, they are taking this defence. Taking overall view of the matter therefore, in our opinion, it would not be in the interest of justice to interfere with the order impugned. Appeal is therefore dismissed with no order as to costs. 6 At the request of the learned counsel appearing for appellants, operation of the interim order is continued for a period of six weeks from today. Parties to act on the copy of this order duly authenticated by Associate / Private Secretary of this Court. Certified copy expedited. (JUSTICE D.K. DESHMUKH) (JUSTICE SMT R.P. SONDURBALDOTA)