( 1 ) THIS SUIT INVOLVES THE INTERPRETATION OF ORDER xxxvii AND THE SUMMARY PROCEDURE TO BE FOLLOWED UPON THE service OF STATUTORY SUMMONS ON THE DEFENDANT UNDER ORDER xxxvii RULE 3 OF THE CODE OF CIVIL PROCEDURE, 1908 (IN short THE `cpc ). THE PROCEEDINGS IN THIS CASE eloquently DEMONSTRATE HOW REPEATED OPPORTUNITIES TO THE defendant CAN DEFEAT THE ENDS OF JUSTICE IN THE NAME OF equity. THE PLAINT IS BASED UPON THE MEMORANDUM OF understanding DATED 1st DECEMBER, 2000, A DOCUMENT IN writing COVERED BY THE POST-DATED CHEQUES FOR A SUM OF rs. 36,00,000/ -.

( 2 ) IT IS NOT IN DISPUTE THAT ON 17th FEBRUARY, 2004, THE DEFENDANT WAS DULY SERVED WITH THE SUMMONS IN the STATUTORY FORM, AS ENVISAGED UNDER ORDER XXXVII RULE 3 OF THE CPC AND IS REPRESENTED BY MR. PALLAV SISODIA, advocate. IT IS ALSO NOT IN DISPUTE THAT NO MEMO OF appearance ON BEHALF OF THE DEFENDANT HAS BEEN ENTERED thereafter AS POSTULATED UNDER ORDER XXXVII CPC.

( 3 ) SUMMONS FOR JUDGMENT ARE REQUIRED TO BE TAKEN out UNDER CLAUSE (4) OF ORDER XXXVII RULE 3 CPC. THE order XXXVII RULE 3 CPC READS AS UNDER:-

"3. PROCEDURE FOR THE APPEARANCE OF DEFENDANT -- (1) IN A SUIT TO WHICH THIS ORDER APPLIES, THE PLAINTIFF shall, TOGETHER WITH THE SUMMONS UNDER RULE 2, SERVE ON the DEFENDANT A COPY OF THE PLAINT AND ANNEXURES THERETO and THE DEFENDANT MAY, AT ANY TIME WITHIN TEN DAYS OF such SERVICE, ENTER AN APPEARANCE EITHER IN PERSON OR BY pleader AND, IN EITHER CASE, HE SHALL FILE IN COURT AN address FOR SERVICE OF NOTICES ON HIM. (2) UNLESS OTHERWISE ORDERED, ALL SUMMONSES, NOTICES AND other JUDICIAL PROCESSES, REQUIRED TO BE SERVED ON THE defendant, SHALL BE DEEMED TO HAVE BEEN DULY SERVED ON him IF THEY ARE LEFT AT THE ADDRESS GIVEN BY HIM FOR SUCH service. (3) ON THE DAY OF ENTERING THE APPEARANCE, NOTICE OF SUCH appearance SHALL BE GIVEN BY THE DEFENDANT TO THE plaintiff s PLEADER, OR, IF THE PLAINTIFF SUES IN PERSON, to THE PLAINTIFF HIMSELF, EITHER BY NOTICE DELIVERED AT or SENT BY A PREPAID LETTER DIRECTED TO THE ADDRESS OF the PLAINTIFF s PLEADER OR OF THE PLAINTIFF, AS THE CASE may BE. (4) IF THE DEFENDANT ENTERS AN APPEARANCE, THE PLAINTIFF shall THEREAFTER SERVE ON THE DEFENDANT A SUMMONS FOR judgment IN FORM NO. 4-A IN APPENDIX B OR SUCH OTHER FORM as MAY BE PRESCRIBED FROM TIME TO TIME, RETURNABLE NOT less THAN TEN DAYS FROM THE DATE OF SERVICE SUPPORTED BY an AFFIDAVIT VERIFYING THE CAUSE OF ACTION AND THE AMOUNT claimed AND STATING THAT IN HIS BELIEF THERE IS NO defence TO THE SUIT. (5) THE DEFENDANT MAY, AT ANY TIME WITHIN TEN DAYS FROM the SERVICE OF SUCH SUMMONS FOR JUDGMENT, BY AFFIDAVIT OR otherwise DISCLOSING SUCH FACTS AS MAY BE DEEMED sufficient TO ENTITLE HIM TO DEFEND, APPLY ON SUCH summons FOR LEAVE TO DEFEND SUCH SUIT, AND LEAVE TO defend MAY BE GRANTED TO HIM UNCONDITIONALLY OR UPON SUCH terms AS MAY APPEAR TO THE COURT OR JUDGE TO BE JUST: provided THAT LEAVE TO DEFEND SHALL NOT BE REFUSED UNLESS the COURT IS SATISFIED THAT THE FACTS DISCLOSED BY THE defendant DO NOT INDICATE THAT HE HAS A SUBSTANTIAL defence TO RAISE OR THAT THE DEFENCE INTENDED TO BE PUT up BY THE DEFENDANT IS FRIVOLOUS OR VEXATIOUS: provided FURTHER THAT, WHERE A PART OF THE AMOUNT CLAIMED by THE PLAINTIFF IS ADMITTED BY THE DEFENDANT TO BE DUE from HIM, LEAVE TO DEFEND THE SUIT SHALL NOT BE GRANTED unless THE AMOUNT SO ADMITTED TO BE DUE IS DEPOSITED BY the DEFENDANT IN COURT. (6) AT THE HEARING OF SUCH SUMMONS FOR JUDGMENT -- (A) IF THE DEFENDANT HAS NOT APPLIED FOR LEAVE TO defend, OR IF SUCH APPLICATION HAS BEEN MADE AND IS refused, THE PLAINTIFF SHALL BE ENTITLED TO JUDGMENT forthwith;. . . . . . . "

( 4 ) THUS THERE IS NOTHING ON RECORD TO INDICATE THAT the APPEARANCE HAS BEEN ENTERED ON BEHALF OF THE defendant WITHIN THE STIPULATED PERIOD OF 10 DAYS OF THE receipt OF SUMMONS FOR APPEARANCE ISSUED UNDER ORDER xxxvii RULE 2 (2) OF THE CPC IN THE PRESCRIBED FORM IV appendix B. CONSEQUENTLY, THE SUMMONS FOR JUDGMENT IN form 4a, APPENDIX B OF ORDER XXXVII COULD