AKBAR HUMAYUN ABDULALI Vs. AKBAR HUMAYUN ABDULALI
LAWS(BOM)-2016-2-273
HIGH COURT OF BOMBAY
Decided on February 16,2016

Akbar Humayun Abdulali Appellant
VERSUS
Akbar Humayun Abdulali Respondents

JUDGEMENT

- (1.) This Notice of Motion is taken out by the Defendant applicant under Order XXXVII Rule 4 of the Code of Civil Procedure, 1908 ("CPC") for setting aside an ex-parte decree passed by this court on 18 February 2003.
(2.) The present Summary Suit is filed by the Plaintiff for a decree of Rs.17,09,470/- together with pendent-lite and post decree interest at the rate of 24 % per annum on the principal amount of Rs.10 Lacs. The suit is filed on a Promissory Note as well as a dishonoured cheque. The Plaintiff claims to have lent and advanced a sum of Rs.10 Lacs to the Defendant repayable on demand with interest @ 24 % p.a. In consideration, the Defendant has executed a Demand Promissory Note dated 26 September 1997, promising to pay to the Plaintiff or his order the principal amount of Rs.10 Lacs together with interest @ 24 % per annum. It is the Plaintiff's case that the Defendant issued a cheque of Rs.10 Lacs on 10 April 2000 drawn on Bombay Mercantile Co-operative Bank Ltd. towards repayment of the principal sum. The cheque was dishonoured on presentation for payment and returned with the remark "funds insufficient". The suit was filed on 15 September 2000. A writ of summons was duly served on the Defendant. After the Defendant filed his appearance, a Summons for Judgment was taken out by the Plaintiff on 26 September 2001. The Summons for Judgment appeared for hearing before a learned Single Judge of this Court on 18 February 2003. Learned counsel for the Plaintiff informed the Court at that time that the Defendant had been duly served with the summons and undertook to file an affidavit of service within a period of one week. Since there was no application for leave to defend filed by the Defendant and there was no affidavit disclosing grounds for grant of leave to defend, the Plaintiff's suit was decreed on 18 February 2003 under the provisions of Order XXXVII Rule 3 of CPC. On 29 September 2015, the present Notice of Motion was taken out by the Defendant for setting aside that decree. It is the case of the Defendant that the Defendant became aware of the impugned judgment and decree only when the Defendant received a notice dated 2 February 2015 issued under Order XXI Rule 22 of CPC in an execution application filed by the Plaintiff decree holder. It is submitted that the decree was passed ex-parte after recording an undertaking of the Plaintiff's counsel to file an affidavit of service of the Summons for Judgment. It is submitted that from the search made by the Applicant defendant in the registry, it is revealed that no affidavit in proof of such service appears to have been filed. Based on that, it is claimed by the Applicant defendant that "it appears that no Summons for Judgment was served". In the premises, the Defendant prays for setting aside the ex-parte judgment and decree dated 18 February 2003.
(3.) At the hearing of Notice of Motion, it is admitted by learned Counsel for the Plaintiff decree holder that the record does not disclose any affidavit having been filed by the Plaintiff proving service of Summons for Judgment on the Defendant. It is submitted across the bar by learned Counsel for the Plaintiff that there is no record or proof of service available with the Plaintiff now, since the matter pertains to a decree passed about 12 years back. For the purpose of the present Notice of Motion, we shall accordingly proceed on the footing that the Summons for Judgment was not duly served on the Defendant applicant.;


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