HARASHAD SHAH Vs. BHOR INDUSTRIES LTD

JUDGEMENT

(1.) HEARD .

(2.) BY this notice of motion the defendants pray that delay in taking out the present notice of motion be condoned and the ex parte decree dated 1/8/1995 be set aside and the summons for judgment be heard on merits. In support of the notice of motion an affidavit of Pradeep Chandan, General Manager & Company Secretary of the Defendants company has been filed. It is admitted in the affidavit in reply that the summons of the summary suit filed by plaintiff Mr. Harshad Shah for recovery of sum of Rs.89,062.00 was served upon the defendant company and upon receipt of the summons, the defendant company engaged an advocate to file his appearance within time. It is the case of the defendants that there was no communication received from the plaintiff or his advocate by the defendant company or its advocate and, therefore, the defendants remained under the impression that the matter had not been moved further and they could take appropriate action as and when they receive further communication from the plaintiff or his advocate. In paragraph 3 of the affidavit filed on behalf of the defendant company it is stated that in the month of March 1994 the defendants were informed that the plaintiff has taken out summons for judgment being No.635 of 1993 and upon receipt of the said summons for judgment, a draft reply was prepared by the advocate for the Defendants and forwarded to the then concerned officer of the defendant company who was at that time looking after matter. However, at about time there occurred some changes in the work and responsibilities in the office with the result that the defendants lost track of the said summons for judgment and the matter was not pursued not contacted their Advocate in connection with the above suit with the result that summons for judgment was made absolute on 1.8.1995 as there was no reply from the defendants. It is further stated in the affidavit in support of the motion that the defendants representative thereafter tried to contact their Advocate in December 1995 to know the position of the matter and the advocate could not be contracted as he (advocate) has lost his younger brother in the railway accident. According to the defendants, they have good case on merits and they are not at all liable for sum demanded by the plaintiff since the defendants have made access payment. It is also stated that the very frame of the suit as summary suit was not maintainable since it was not covered under Order 37. Notice of motion has been taken out on 26/6/1997.

(3.) IN the aforesaid circumstances, the question that falls for determination is whether the defendants have been able to explain sufficient cause in not taking out notice of motion for setting aside the ex parte decree in time and whether the defendant company has been able to make out special circumstances for setting aside the ex pare decree as required under Order 37 rule 4 of the Code of Civil Procedure.