Case Note & Summary
The plaintiff, Fountainhead Promotions & Events Pvt Ltd, filed a Summary Suit No. 874 of 2010 against the defendant, Gitanjali Lifestyle Limited, claiming a sum of Rs. 10,78,053/- for organizing an event called 'Gitanjali Lifestyle Luxury Fest 2007' held at Turf Club, Mahalaxmi, Mumbai between 22nd and 25th December 2007. The plaintiff alleged that despite part payments, the defendant failed to pay the balance amount. The plaintiff claimed that the writ of summons was served on the defendant, but no appearance was entered. On 15th September 2010, the court passed an ex parte decree in favor of the plaintiff. The defendant filed a notice of motion seeking condonation of delay of 164 days and setting aside of the ex parte decree, contending that it was never served with any summons and only came to know of the decree when a garnishee notice was served on its bank. The court examined the affidavit of the bailiff and found that it did not specify the mode of service or the person on whom summons was served. The court held that the plaintiff failed to prove valid service of summons. The court also found that the defendant had sufficient cause for the delay in filing the application. Consequently, the court allowed the notice of motion, condoned the delay, set aside the ex parte decree, and granted leave to the defendant to defend the suit subject to depositing Rs. 5,39,026.50 within four weeks.
Headnote
A) Civil Procedure - Summary Suit - Ex Parte Decree - Setting Aside - Order XXXVII, Code of Civil Procedure, 1908 - The defendant sought to set aside an ex parte decree passed in a summary suit on the ground that no writ of summons was served upon it. The court held that since the defendant was not served, the decree was liable to be set aside. The delay of 164 days in filing the application was condoned as the defendant had sufficient cause for the delay. (Paras 1-11) B) Civil Procedure - Service of Summons - Affidavit of Bailiff - Order V, Code of Civil Procedure, 1908 - The court noted that the affidavit of the bailiff did not specify the mode of service or the person on whom summons was served. The court held that mere filing of an affidavit without proper details does not prove valid service. (Paras 5-7) C) Civil Procedure - Condonation of Delay - Sufficient Cause - Section 5, Limitation Act, 1963 - The defendant claimed that it came to know of the decree only when a garnishee notice was served. The court found this explanation reasonable and condoned the delay of 164 days. (Paras 8-10)
Issue of Consideration
Whether the ex parte decree passed in a summary suit should be set aside when the defendant claims lack of service of summons and whether the delay of 164 days in filing the application should be condoned.
Final Decision
The court allowed the notice of motion, condoned the delay of 164 days, set aside the ex parte decree dated 15th September 2010, and granted leave to the defendant to defend the suit subject to depositing Rs. 5,39,026.50 within four weeks.
Law Points
- Service of summons is mandatory for ex parte decree
- Condonation of delay requires sufficient cause
- Order XXXVII CPC summary suit procedure
