The Bombay High Court dismissed an application to set aside an ex-parte decree. The court held that the defendant's failure to receive summons was not substantiated and found no merit in the defendant's challenge on merits.
Notice of Motion dismissed with costs of Rs. 2500/- payable by the defendant.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO. 1380 OF 2006
IN
SUMMONS FOR JUDGMENT NO. 483 OF 2005
IN
SUMMARY SUIT NO. 3568 OF 2004
Asian Paints Industrial Coatings Ltd ....Plaintiffs.
vs.
M/s. Jiwa Appliance Ltd
....Defendants.
Mr. Amit Vyas i/by. Rajani Associates for the
plaintiffs to show cause
Mr. S.S. Joshi for the defendants in support.
CORAM: S.J. VAZIFDAR, J.
NOVEMBER 15, 2006.
P.C. :
1. This is an application for setting aside the
ex-parte decree dated 2/11/2004. The only ground is
that the defendant has not received the Summons for
Judgment. The defendant actually refused service.
The excuse that there is a labour problem at the
factory is untanable. There is nothing to suggest
that correspondence was not received by the
defendant. As a result thereof, there is no
explanation as to how the defendant came to know
about the decree. The defendant chose to appear
only after the decree was passed.
2. Even on merits there is absolutely no evidence.
There are acknowledgment of liabilities and promises
to pay by the defendants. In the circumstances, the
Notice of Motion is dismissed with costs fixed at
Rs.2500/- to be payable by the defendant to the
plaintiff within two weeks from today.
2 issues framed by the court
Whether the ex-parte decree should be set aside on the ground that the defendant did not receive summons.
Whether the defendant has raised any merit to the plaintiff's claim evidenced by acknowledgment of liability.
S. J. Vazifdar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court