1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. NOTICE OF MOTION NO.1582 OF 2009 IN SUMMARY SUIT NO.2435 OF 2008 Euroferco N.V. ..Plaintiff. Vs. Shree Precoated Steel Ltd. ..Defendant. .... Mr. Chirag Balsara i/b Vikram Philip and Associates for the Plaintiff. Mr. Chetan Kapadia with Mr. Rajesh Thakkar i/b K. Ashar & Co. for the Defendant. .... CORAM : DR. D.Y. CHANDRACHUD, J. 24th August, 2009. P.C. : 1. The Notice of Motion has been taken up on Board by consent, called out and taken up for hearing and final disposal on the request of the learned counsel for both the parties. 2. In a summary suit instituted under Order 37 of the Code of Civil Procedure 1908 the writ of summons was served on the Defendant on 14th August, 2008. The Defendant failed to enter appearance. On 9th 2 February, 2009 the summary suit was decreed. The Motion has been taken out for setting aside the order and decree dated 9th February, 2009. 3. Under Rule 4 of Order 37 the Court is vested with a discretion under special circumstances “ to set aside the decree and if necessary to stay or set aside execution or to give leave to the Defendant to appear to the summons and to defend the suit if it seems reasonable to the Court to do so and on such terms as the Court may think fit”. Therefore the test which should be applied in deciding the Notice of Motion is whether, within the meaning of Order 37 Rule 4, the Defendant has made out a case of special circumstances warranting the exercise of the jurisdiction of the Court. 4. Counsel appearing on behalf of the Defendant submits that the expression “special circumstance” has two components, the first being whether the Defendant has advanced a sufficient cause for non appearance and secondly whether the Defendant has prima facie an arguable case on the merits of the claim. 3 5. Now in the affidavit in support of the Notice of Motion the Defendant admits that the writ of summons was served on 14th August, 2008. The only ground for non appearance is set out in paragraph 3 of the affidavit which reads as follows : “3. I say that, the said Writ of Summons along with the copy of the Plaint was received by the Inward Department of the Defendants and could not thereafter be forwarded to the Concerned Department for necessary action as the same got mislaid in transit and hence was never received by the concerned Department and remained unattended without necessary follow up from the date of receipt i.e. 14th August, 2008.” On behalf of the Plaintiff it has been pointed out that no affidavit of the receiving clerk has been filed nor is there any specific explanation as to why the summons could not be forwarded to the concerned department. 6. The explanation that has been advanced in paragraph 3 of the affidavit in support is completely vague and bereft of material particulars. Why the writ of summons could not “thereafter be forwarded to the concerned department for necessary action” is not explained. 4 7. The provisions of Order 37 are an attempt to effectuate the intention of the legislature to provide for an expeditious and efficacious summary procedure for dealing with suits which fall under the description provided in sub rule (2) of Rule 1 of Order 37. The Defendant upon whom the summons has been served is required by the sub rule (1) of Rule (3) within ten days of service to enter appearance either in person or by pleader. Even after the service of the Summons for Judgment, the Defendant is under sub rule (5) required within ten days of such service to file an affidavit or otherwise disclose facts as may be deemed sufficient to entitle him to defend the suit. It is in this context, that the provisions have to be construed under Rule (4). The defendant who comes before the Court for setting aside a decree has to make out special circumstances. These circumstances have to be brought before the Court with a sufficient degree of particularity and must inspire the confidence of the Court. Otherwise the salutary provisions which are made under Order 37 would be rendered nugatory. In the present case, beyond making a bald averment in the affidavit in support of the Motion 5 no valid or cogent explanation has been furnished. 8. On the merits, it was submitted by counsel appearing on behalf of the Defendant that if the Defendants were to have an opportunity to contest the suit, the Defendants would have been in a position to point out that under the purchase order annexed at Exhibit A to the Plaint and under the sales contract annexed at Exhibit B parties have made a provision for arbitration and the Defendants would have been entitled to move an application under Section 8 of the Arbitration and Conciliation Act, 1996. Now, Section 8 is not a bar to the Court entertaining a suit. What Section 8 provides is that a judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration. For instance, it is always open to the First Defendant to waive the right to object under Section 8. Thus Section 8 is not a bar to the maintainability of the suit. The Defendant who seeks to avail of the defence cannot be indolent. In this case, the Defendant despite 6 opportunity did not defend the suit by entering appearance. 9. On behalf of the Plaintiff attention has been drawn to the averments contained in paragraph 14 of the Plaint wherein the Plaintiff has averred that based on certain discussions for settlement between the parties, the Plaintiff forwarded to the Defendant two debit notes one in the sum of Euro 100,000 and another for Euro 10,000. It has been averred that the said debit notes were “signed and accepted by the defendant company” through its representative. The attention of the Court has been drawn to the fact that the debit notes were accepted by a representative by the name of Sanjay Ajmera whereas the affidavit dated 21st August, 2009 has been filed by some other officer. In an additional affidavit dated 21st August, 2009 the Defendants have sought to deal with the case of the Plaintiff based on the two debit notes which according to the Plaintiff were signed and accepted by the Defendants. In paragraph 15 and 16 of the reply there is no specific denial of the averment that the two debit notes were “signed and accepted” by the Defendant herein. Only a bald averment has been 7 made that the Defendant has never agreed to pay the amount as claimed by the Plaintiff. 10. For all these reasons, this Court is of the view that no case making out special circumstances within the meaning of Rule (4) of Order 37 has been made out. The Defendant has no cogent explanation for non appearance and the defence does not inspire confidence. The Motion will accordingly have to be dismissed and is accordingly dismissed. *****