The court allowed a chamber summons filed by defendants to set aside an ex parte decree. Held that defendants had diligently pursued the case and the order is set aside; suit is restored to the file.
Chamber Summons allowed; Summons for Judgment and suit restored to the file. Hearing fixed.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.772 OF 2009
IN
SUMMONS FOR JUDGMENT NO.44 OF 2008 IN
SUMMARY SUIT NO.370 OF 2008
Building Diagnostics & Solutions A Division of N.Z. Guzdar & Co. .... Plaintiffs
V/s
Yogi Tower Co-operative Housing Society Ltd. .... Defendants.
Mr. S. Shamim i/b Shamim & Co. for plaintiff.
Mr. C.M. Korde, Senior Counsel with Mr. Daver i/b D.B. Parmar for defendants.
CORAM: V.M. KANADE, J. DATE : 30th September, 2009
P.C.:
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for setting aside the ex parte order dated 8/4/2009 whereby Chamber Summons No.44 of 2008 which was taken out by plaintiffs was made absolute and the suit was decreed as prayed.
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AIR 1981 SC 1400. He submitted that, under these
circumstances, this is a fit case for setting aside the ex parte order and decree passed by the learned Single Judge.
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architect who submitted a report that the work to the tune of Rs 35 lacs had been carried out by plaintiffs and, therefore, the balance amount was over paid to plaintiffs by the Society. He further submitted that no notice under section 164 of the Maharashtra Co-operative Societies Act was given to defendants and, therefore, the suit was not maintainable. Defendants, therefore, have pursued the case diligently and, thereafter, almost for a period of one year the matter did not appear on board and, thereafter, on three consecutive dates, defendants’ advocate did not remain present.
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Motion and, therefore, the said Notice of Motion was allowed to be withdrawn and the present Chamber Summons is filed. So far as other submissions made by the learned Counsel for plaintiffs are concerned, the said submissions pertain to the merits of the case and, therefore, the said submissions which are made cannot be taken into consideration at this stage while hearing this Chamber Summons.
3 issues framed by the court
Whether the order setting aside the ex parte decree and decreeing the suit should be set aside due to launch of the case by the defendant.
Whether the Chamber Summons taken out by the defendant to set aside the ex parte order is maintainable.
Whether the respondent was negligent in pursuing the case and therefore deserved to be set aside the ex parte order.
Colour shows how this judgement treated each authority
Rafiq and another v. Munshilal and anotherApplied¶20
Rafiq and another v. Munshilal and another AIR 1981 SC 1400 · Who else cites this
1 provisions across 1 enactments
Building Diagnostics & Solutions A Division of N.Z. Guzdar & Co.
Yogi Tower Co-operative Housing Society Ltd.
V.M. Kanade
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
