1 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 3431 OF 2009 IN APPEAL NO. 918 OF 2005 IN SUM. SUIT NO. 3613 OF 2003 Mr.A.L.Kasture ..Appellant Vs. Bombay Chemicals Pvt.Ltd. ..Respondent .... Mr.B.G.Saraf i/by T.S.Patwardhan for Appellant Mr.Mayur Khandeparkar along with Ms. Sapna Raichure i/by T.N.Tripathi for Respondent .... CORAM : B.H.MARLAPALLE AND SMT.V.K.TAHILRAMANI, JJ. DATE : 9th MARCH, 2010 P.C.: 1 Heard Mr. Saraf, the learned counsel for the applicant- appellant and Mr.Khandeparkar for respondent. 2 Appeal No. 918 of 2005 came to be dismissed for non- prosecution on 18th August, 2009 and therefore, this Motion has been taken out for its restoration. 3 As per the Office report, the Motion is in time. However, it has been opposed by the respondent on the ground that it does not fulfill the requirements of Order XLI 19 of C.P.C. and therefore, there is no 2 case made out for re-admission of the appeal. It was submitted that the dismissal of the appeal by this Court on 18th August, 2009 was neither under Rule 11(2) nor Rule 17 of Order XLI of C.P.C. By the order impugned in the appeal, leave to defend has been granted by the trial Court to the defendant-appellant on the condition of depositing a sum of Rs.20,00,000/- as against the recovery claim of Rs.27,83,689/- plus interest. 4 We have noted from the order dated 18th August, 2009 passed by the Division Bench dismissing this appeal that the appellant was represented by Shri. Gangal, the learned advocate and he was not present before the Court though his name was shown on the board. Mr. R.P.Kadam, another learned advocate appeared before the Division Bench and sought an adjournment on the ground that he had instructions to appear in the case. Mr. Kadam also stated that he had not filed his Vakalatnama in the appeal and therefore, this Court recorded that, as a matter of fact, for want of power, Mr. Kadam could not appear in the appeal. However, the Court proceeded to allow sometime to Mr. Kadam to go through the papers and to argue the appeal in the second half. As he was not prepared to argue the appeal and as he sought adjournment in the second half, the appeal came to be dismissed. 3 5 The record also shows that Mr. Angal was not discharged from the appeal and Mr. Kadam, as noted by the Court, for want of power, could not appear in the appeal. We therefore, hold that the appeal was dismissed under Rule 11(2) of Order XLI of C.P.C. and therefore, this Motion for re-admission of the appeal under Rule 19 of Rule XLI of C.P.C. is maintainable. 6 We have noted that the learned trial Judge has directed that the deposited amount would be invested in a nationalized bank and none of the parties would be allowed to withdraw the said amount. To test the bonafides of the appellant, it would be appropriate that some conditions are imposed even while restoring the appeal and merely awarding costs would not be sufficient in the peculiar facts of this case. 7 Hence, the Motion is made absolute in terms of prayer clause (a) subject to the applicant-appellant depositing an amount of Rs. 5,00,000/- with the Prothonotary and Sr. Master within a period of four weeks from today. The deposited amount shall stand invested with a nationalized bank during the pendency of the appeal. [ SMT.V.K.TAHILRAMANI, J.] [ B.H.MARLAPALLE, J. ]