Important Point—It is not enough to show the special circumstances which prevented a person from appearing or applying for leave to defend, he has also to show by affidavit or otherwise, the facts which would entitle him to leave to defend the suit.

B.P. COLABAWALLA, J.

1. This Appeal has been filed seeking to assail the order dated 29th February, 2016 passed by the learned Single Judge in Notice of Motion No.8 of 2016 in Summary Suit No. 2539 of 2012. This Notice of Motion was filed by the Appellant before us who was the Original Defendant in the Summary Suit. Since a Summary Suit was filed against the Appellant in which an ex-parte decree was passed by this Court, this Notice of Motion was taken out for setting aside an ex-parte decree under Order XXXVII Rule 4 of the Code of Civil Procedure, 1908 (for short the “CPC”). The learned Single Judge after hearing the Appellant (Original Defendant) as well as the Respondent (Original Plaintiff), by a reasoned order dismissed the Notice of Motion. Being aggrieved by this order, the Original Defendant-Appellant is before us in Appeal.

2. This Appeal was admitted on 29th March, 2016. Thereafter, by an order dated 18th July, 2016 passed by this Court in Notice of Motion (L) no.788 of 2016 this Court disposed off the said Notice of Motion and granted interim relief in terms of prayer clause (a) thereof, subject to the condition that the Appellant deposit with the Prothonotary and Senior Master of this Court a sum of Rs. 3,20,34,110/- within a period of three months from the said date and subject to a further condition that 50% of the amount shall be deposited within a period of six weeks from the aforesaid date. On failure to deposit any amount, the interim relief granted was to stand vacated without any further reference to the Court. It is not in dispute that the order of this Court dated 18th July, 2016 passed in this Appeal has not been complied with. In any event, now the matter has come up for hearing and final disposal before us and that is how we have heard the respective parties. For the sake of convenience, we shall refer to the parties as they were arrayed before the Trial Court.

3. Before we deal with the rival contentions, it would be necessary to set out a few facts. It is the case of the Plaintiff that in the month of June, 2010, a company by the name M/s Ankur Drugs and Pharma Ltd (for short the “said Company”), through one of its Directors approached the Plaintiff and requested for an Inter Corporate Deposit (for short, “ICD”) of Rs. 2.50 Crores. This ICD was for a period of 365 days and was to carry interest @ 18% per annum. Keeping in line with this request, the Plaintiff, by its letter dated 1st July, 2010 agreed to the same on certain terms and conditions. Accordingly, on receipt of the said ICD, the said Company (Ankur Drugs and Pharma Limited), issued a receipt dated 7th July, 2010 confirming the receipt of a sum of Rs.2.50 Crores from the Plaintiff drawn on Standard Chartered Bank.

4. As per the terms and conditions agreed to between the parties, the said Company also issued six post dated cheques for a total sum of Rs.2,90,49,998/- which included return of the principal amount as well as the interest. To secure the repayment of the aforesaid ICD along with the interest (and this also being one of the conditions on which the ICD was given to the said Company), the Defendant also executed a personal guarantee on 7th July, 2010. The said guarantee inter-alia stipulated that the Defendant personally undertook to pay the said ICD and interest thereon on its maturity date in the event the said Company committed default in repayment.

5. Since the post-dated cheques given by the said Company in the sum of Rs. 2,90,49,998/- were dishonoured on presentation, there was admittedly a default committed. Accordingly, the Plaintiff by its notice dated 31st July, 2012 addressed to the Defendant, invoked the personal guarantee and called upon him to pay the amount under the said personal guarantee. The said notice was sent by RPAD on 1st August, 2012 and the same was refused by the Defendant on 7th August, 2012. Since the Defendant did not comply with the requisitions contained in the notice dated 31st July, 2012, the