-1-

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

Notice of motion no. 4070 of 2005

in

Summons for Judgment no. 433 of 2004

in

Summary suit no. 1151 of 2004

Renu K. Bhatia

: Plaintiff

v/s

Kishan Loungani

: Defendant

None for plaintiff

Mr. Yashpal Jain for defendant

Coram : S.J. Kathawalla, J.

P.C.

14th November, 2008

.

This notice of motion was called out for

hearing

in

the

morning

session

when

none

appeared

for

the

plaintiff.

It

was,

therefore,

directed

that

the

matter

would

be

taken

up

at

3.00

p.m.

The

Advocate

for

the

defendant

was

also

directed

to

inform

the

office

of

Mr.V.M.Talreja,

Advocate

for

the

plaintiff

that

the

matter

would

be

taken

up

at

3.00

p.m.

At

3.00

p.m.

the

notice

of

motion

is

once

again

called

out

for

hearing

when

the

Advocate

for

the

defendant

has

informed

the

Court

that

he

has

left

the

message

with

the

office

of

Mr.V.M.Talreja

that

the

Notice

of

Motion

would

be

taken

up

by

this

Court

at

3.00

p.m.

for

hearing.

However,

none

appeares

for

the

plaintiff.

This

Court,

therefore,

is

constrained

to

proceed with the hearing of the Notice of Motion in

-2-

the absence of the plaintiff and/or her Advocate.

2.

This

Notice

of

Motion

is

taken

out

by

the

defendant

for

setting

aside

the

exparte

decree

dated

22nd

August,

2005

in

Summons

for

JudgmentNo.433

of

2004 in Summary Suit No.1151 of 2004 passed by this

Court (Coram: S.J.Vazifdar J.).

3.

In

the

affidavit

in

support

of

the

Notice

of

Motion,

the

defendant

has

inter

alia

submitted

that

the

exparte

decree

is

passed

on

the

basis

that

the

defendant

has

not

filed

any

affidavit

in

reply.

It

is

pointed

out

that

the

defendant

had

in

fact

filed

the

affidavit

in

reply

dated

11th

August,

2005

on

17th

August,

2005.

It

is

also

pointed

out

by

the

defendant

that

in

the

exparte

order

it

is

stated

that

certain

part

payments

were

made

by

the

defendant

to

the

plaintiff

and

that

some

cheques

drawn

by

the

defendants

were

dishonoured.

The

defendant

has

further

pointed

out

that

no

such

payments

have

been

made and no cheques drawn by the defendant were

dishonoured.

4.

The

defendant

after

taking

out

this

notice

of

motion

moved

before

this

court

for

ad-interim

reliefs

in

terms

of

prayer

clause

(c).

By

order

dt.

24th

-3-

December,

2005

this

court

(Coram

S.J.

Vazifdar,J)

has

recorded

:

"It

appears

that

an

affidavit

in

reply

had

been

filed.

The

orders

sought

to

be

set

aside

was

passed

on

the

basis

that

there

was

no

affidavit

in

reply."

The

defendant

has

also

explained

in

the

affidavit

in

support

of

the

motion

as

to

why

the

advocate

for

the

defendant

could

not

remain

present

before this court on 22.8.2005 when the above exparte

decree was passed.

5.

In

view

what

is

stated

aforesaid

and

in

view

of

the

reasons

set

out

in

the

affidavit

in

support

of

the

notice

of

motion

I

am

satisfied

that

the

defendant

has

made

out

a

reasonable

and

satisfactory

case

for

setting

aside

the

exparte

decree

dated

22nd

August,

2005

passed

in

Summons

for

Judgment

No.433

of

2004

in

Summary

Suit

No.1151

of

2004.

In

view

thereof

the

exparte

decre

dated

22nd

August

2005

passed

in

Summons

for

Judgment