Important Point: No provision of Order 37 can be read in isolation. If there is any ambiguity, for the sake of clarity and completeness, the forms appended to the rules can be looked into and read together with the substantive provisions.

S.C. Dharmadhikari, J.

1. This Appeal (Appeal (Lodg.) No.310 of 2016) by the original Defendant Nos.2 to 4 under section 13 of the Commercial Courts Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (Act 4 of 2016) challenges the order passed by the learned single Judge dated 16th April, 2016, in Notice of Motion No.1562 of 2015 moved by the appellants and respondent No.3 to this appeal who is the original defendant No.5 in a Summary Suit being Summary Suit No. 334 of 2012.

2. It is the rejection of the appellants' application for setting aside an ex-parte decree dated 20th August, 2014, passed in the above Summary Suit which is impugned in this appeal.

3. At the outset, we clarify that it is that aspect of the impugned order and the proceedings which is highlighted by the appellants before us. Hence, the title as appearing in the impugned order may refer to several applications, but each of those may not be relevant for us. Once we note that the essential controversy is about the correctness and legality of the learned single Judge's order refusing to set aside the ex-parte decree, then, we would focus only on the same.

4. To appreciate the rival contentions one would have to refer to the relevant dates and events.

5. The first respondent to this appeal is the original plaintiff. It filed Summary Suit No. 334 of 2012, invoking Order XXXVII of the Code of Civil Procedure, 1908. Since there are serious errors and mistakes in the description of the parties in the title of the Memo of Appeal, we would prefer to go by the description and arrangement of parties as appearing in the Plaint. That reads as under :

“SUMMARY SUIT NO. 334 OF 2012

(Under Order XXXVII of the Code of Civil Procedure 1908)

Sailam B.V.B.A. - Plaintiff

Vs.

M/s. Helios Jewellery Pvt. Ltd. - Defendants

6. In paragraph 1 of the plaint it is stated that the first respondent – original plaintiff is a registered partnership firm and having its registered office at the addresses mentioned in the cause title of the plaint. The appellant are stated to have executed personal guarantees together with the third respondent to this appeal guaranteeing the repayment of the moneys due and payable by the respondent No.2 – original defendant No.1. The plaint proceeds to allege that the plaintiffs have dealt with the first defendant company on the basis of personal guarantees and assurances of defendant Nos.2 to 5 for themselves as also on behalf of defendant No.1. Therefore, the defendant Nos.2 to 5 are jointly and severally liable to discharge the liability of defendant No.1.

7. It is stated in the plaint that the plaintiff is in the business of sale of diamonds and other allied products. The partners of the plaintiff are residing in India. They reside in the vicinity of the residence of original defendant Nos.2 to 5. They know each other and have been maintaining good relations with each other. It is pleaded that one Mr. Kanwal Shah, partner of the plaintiff has very goods relations and is a close acquaintance of the defendant Nos.2 to 5. In the month of January, 2011, the defendant Nos.2 to 5 represented to the partner of the plaintiff that they are carrying on business in the name and style of defendant No.1 and deal in diamonds. The defendant Nos.2 to 5 further represented to the plaintiff that in the routine course of their business they are importing diamonds. That is how the diamonds were exported by the plaintiff which is based in Antwerp, Belgium under four different invoices dated 25th January, 2011, 26th January, 2011, 31st January, 2011 and 4th February, 2011. The invoices were acknowledged by four shipping instructions, four export documents and four air way bills. The goods were sent to the defendants in Surat, India. The goods were accepted by the defendants. The goods were transported to Mumbai. The defendants claim that they have returned the goods to the plaintiffs and relying upon a challan dated 4th February, 2011. However, it is c