*1* nms.2794.10 kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2794 OF 2010 IN SUMMARY SUIT NO.155 OF 2009 Global Trade Finance Ltd.. ..Plaintiff -Versus- Pradeep Kumar Saraf and another. ..Defendants .......... Cyrus Ardheshir a/w Rajesh Talekar i/b K.Ashar & Company, for the Plaintiff. Anjana Baxi, for the Defendants. .......... CORAM : S.C.DHARMADHIKARI, J. DATE : 08th October, 2010. P.C. 1 This is Notice of Motion for setting aside the ex-parte decree in the summary suit. 2 From the record it is clear that on 05.02.2009, Vakalatnama was filed by the Defendants' Advocate. Thereafter, the Summons for Judgment was taken out which was duly served on the Defendants' Advocate on 03.03.2009. There was no reply thereto. The matter was listed for ex-parte decree on 27.08.2010 on which date I directed that the notice be given once again to the Defendants' Advocate so that if they have to show cause they would remain present. The matter was adjourned till 14.09.2010 on which date as well the name of the Defendants' Advocate was duly shown on the daily board but neither the Defendants nor their Advocate appeared, that is how this Court proceeded to consider the request of the Plaintiff to pass a decree in their favour. Having perused *2* nms.2794.10 the original documents, this Court passed the detailed order and granted decree as prayed. 3 Now this Notice of Motion to set aside the ex-parte decree has been moved by the Defendants. 4 In the affidavit in support of the Notice of Motion, all that is stated is that there was some difficulty of the Defendants' Advocate and that the matter was not noticed inadvertently on the internet. 5 It is clear from perusal of the legal provisions and particularly under Order-37 Rule-4 of the Civil Procedure Code as this Court has taken a view that Order-37 Rule-4 cannot be equated with Order-9 Rule-13 of the Civil Procedure Code and the Defendants have to show special circumstances and then only the Court can set aside the decree. Barring non appearance of the Defendants' Advocate there are no special circumstances shown in the affidavit in support of the present Notice of Motion. 6 The learned counsel appearing for the Defendants argued that there are parallel proceedings inasmuch as arbitration is pending against the Company and therefore, this Court should not proceed with the instant suit. Further it is submitted that the Plaintiffs have not given any credit for the amounts that they have received from the insurance company, therefore, special circumstances are made out. 7 It is not possible to agree with the submissions of the Defendants' Advocate because the affidavit that is filed in support of this Notice of Motion makes no reference either to any document or any other record to show that the summary suit is not maintainable or that the Defendants are not liable to pay the sums claimed. Paragraph No.3 of the affidavit in support, in my view, does not satisfy the requirement of Order-37 Rule-4 and what is stated therein cannot be held to be special *3* nms.2794.10 circumstances. 8 In the result, if the decree has to be set aside, the Defendants will have to be put to terms. Thus, in the event of the Defendants depositing in this Court a sum of Rs.10 lacs within a period of six weeks from today, the decree passed against them will be set aside and thereafter, the Summons for Judgment shall be listed for hearing and final disposal. If the Defendants fail to comply with this condition, the decree stands and the Plaintiffs can execute the same in accordance with law. 9 Notice of Motion is, accordingly, disposed of. (S.C. Dharmadhikari, J)