The judgment established the requirement for the defendant to demonstrate non-service of Writ of Summons and special circumstances to set aside an ex-parte decree in a Summary Suit. It clarified that failure to file Vakalatnama or enter an appearance is not sufficient to constitute special circumstances and emphasized the need to prove a good defense on merits.

1. By this notice of motion, the defendant seeks condonation of delay of 164 days in taking out notice of motion and also seek that ex-parte decree dated 15th September, 2010 passed by this Court be set aside.

2. The plaintiffs have filed the Summary Suit No. 874 of 2010 arising out of Invoices issued by the plaintiffs for organizing and conducting an event by the name of “Gitanjali Lifestyle Luxury Fest 2007” at the “Turf Club”, Mahalaxmi, Mumbai between 22nd December, 2007 to 25th December, 2007. According to the plaintiffs, the defendants were liable to pay sum of Rs.10,78,053/- after adjustment of all part payments made by the plaintiffs including sum of Rs. 4,48,550/-.

3. It is the case of the plaintiffs that though Writ of Summons was served upon the defendants, no Vakalatnama was filed by the defendants.

4. The plaintiffs tendered affidavit of the Bailiff of Sheriff of Bombay affirmed on 9th June, 2010. This Court after considering the affidavit of Bailiff, passed an ex-parte decree on 15th September, 2010. It was observed that Summary Suit is maintainable under Order XXXVII of the Code of Civil Procedure, 1908 (the CPC for short) and there was no denial of liability nor was any dispute raised thereto. The defendants have taken out this notice of motion for condonation of delay and for setting aside the ex-parte decree passed by this Court on the ground that the defendants were not served with any Writ of Summons. It is submitted that the defendants came to know for the first time about the decree passed by this Court when winding up notice came to be issued by the plaintiffs on 8th October, 2010. Vide letter dated 28th January, 2011 the defendants informed the plaintiff's Advocate that Writ of Summons was never served upon the defendants at any point of time and ex-parte decree passed by this Court on 15th September, 2010 was not on merits.

5. Learned counsel appearing for the defendants invited my attention to the affidavit filed by the Bailiff and also Annexure-A to the said affidavit, in support of her submission that Writ of Summons was admittedly not served upon the defendant. My attention is invited to the rubber stamp affixed on the acknowledgment card which indicates that Gitanjali Gems Ltd. has received the said writ of summons. The learned counsel submits that in addition to the defendants there are other Companies operating from the same address having separate staff. It is submitted that no such Writ of Summons was received by the defendants at that time or subsequently.

6. On merits, it is submitted that matter was settled amicably and vide letter dated 5th April, 2008, the defendants have already paid a sum of Rs.25,38,248/-in full and final settlement to the plaintiffs. It is submitted that after more than three months the plaintiffs denied the said payment in full and final settlement and disputed authority of their peon and raised further demand. It is submitted that according to the defendants there was settlement arrived at between the plaintiffs and the defendant pursuance to which the payment of Rs.4,48,500/- was made by the defendants which was accepted by the plaintiffs. It is submitted that in view of these facts, question as to whether the said amount of Rs.4,48,500/- was paid in full and final settlement of the entire claim of the plaintiffs or not, and whether there was any accord and satisfaction of the claims made by the plaintiffs or not, is the matter which requires trial and thus the Summary Suit itself was not maintainable. It is submitted that the defendants have a good case on merits. The defendants have demonstrated special circumstances for setting ex-parte decree passed against the defendants by this Court.

7. Learned counsel appearing for the plaintiffs, on the other hand, submits that it is not in dispute that the Writ of Summons was served at the registered office of the defendants. Learned counsel invited my attention to the annual report of Gitanjali Lifestyle Limite