Case Note & Summary
The case involves an appeal by M/s. Asian Engg. Sales Corpn. against an order of a single Judge of the Bombay High Court dismissing their Notice of Motion. The Notice of Motion sought to set aside an ex-parte order dated 7th June 2004 and restore the Summons for Judgment for hearing on merits. The background includes an ex-parte decree passed on 30th April 2002, which was later stayed conditionally upon the Appellant depositing 50% of the decretal amount. The Appellant deposited that amount, and the Summons for Judgment was restored. However, on 7th June 2004, the learned Judge granted conditional leave to defend upon depositing the balance 50% within four weeks, which the Appellant failed to do. The Appellant then filed the Notice of Motion, which was dismissed. The Division Bench, in appeal, observed that there was no real defence to the claim and that the Appellant had not complied with the condition. Consequently, the appeal was dismissed.
Headnote
A) Civil Procedure - Summary Suit - Conditional Leave to Defend - Order XXXVII CPC - The Appellant sought to set aside an ex-parte order granting conditional leave to defend and restore the Summons for Judgment. The Court held that the Appellant failed to comply with the condition of depositing the balance 50% of the decretal amount, and there was no real defence to the claim. The appeal was dismissed. (Paras 1-3)
Issue of Consideration
Whether the learned single Judge erred in dismissing the Appellant's Notice of Motion seeking to set aside an ex-parte order and restore the Summons for Judgment, given the Appellant's failure to comply with the condition of depositing the balance decretal amount.
Final Decision
Appeal dismissed. The order of the learned single Judge dismissing the Notice of Motion is upheld.
Law Points
- Conditional leave to defend
- summary suit
- non-compliance with condition
- dismissal of notice of motion
- no real defence
Case Details
2005 LawText (BOM) (03) 2
Appeal (Lodging) No.641 of 2004 in Notice of Motion No.1940 of 2004 in Summons for Judgment No.258 of 2000 in Summary Suit No.4585 of 1999
Mr. K.R. Belosey for the Appellant, Mr. M.P. Rege for the Respondent
M/s. Asian Engg. Sales Corpn.
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Nature of Litigation
Appeal against dismissal of Notice of Motion seeking to set aside ex-parte order and restore Summons for Judgment in a summary suit.
Remedy Sought
Appellant sought to set aside the ex-parte order dated 7th June 2004 and restore the Summons for Judgment to be heard on merits.
Filing Reason
Appellant failed to comply with the condition of depositing balance 50% of decretal amount imposed by the order granting conditional leave to defend.
Previous Decisions
Ex-parte decree on 30th April 2002; conditional stay on deposit of 50% on 4th June 2002; extension of time on 13th August 2002; restoration of Summons for Judgment on 13th April 2004 after deposit; conditional leave to defend on 7th June 2004 requiring deposit of balance 50% within four weeks.
Issues
Whether the learned single Judge erred in dismissing the Notice of Motion seeking to set aside the ex-parte order and restore the Summons for Judgment.
Submissions/Arguments
Appellant argued that the ex-parte order should be set aside and Summons for Judgment restored.
Respondent contended that there was no real defence and the Appellant failed to comply with the condition.
Ratio Decidendi
In a summary suit under Order XXXVII CPC, if a defendant fails to comply with a condition for leave to defend and there is no real defence to the claim, the court may dismiss the application to set aside the conditional order.
Judgment Excerpts
The learned Judge observed that there was no real defence to the claim in suit.
The Appellant has not complied with the said condition.
Procedural History
Ex-parte decree on 30th April 2002; conditional stay on deposit of 50% on 4th June 2002; extension of time on 13th August 2002; restoration of Summons for Judgment on 13th April 2004; conditional leave to defend on 7th June 2004; Notice of Motion filed to set aside that order; Notice of Motion dismissed; present appeal filed.
Acts & Sections
- Code of Civil Procedure, 1908: Order XXXVII
