:1: bgp bgp bgp IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION APPEAL APPEAL APPEAL NO.616 OF 2004 NO.616 OF 2004 NO.616 OF 2004 IN IN IN NOTICE NOTICE NOTICE OF MOTION NO.2248 OF 2002 OF MOTION NO.2248 OF 2002 OF MOTION NO.2248 OF 2002 IN IN IN SUIT SUIT SUIT NO.3817 OF 2001 NO.3817 OF 2001 NO.3817 OF 2001 Jay Container Services Co.Pvt.Ltd. ..Appellant Vs. Diamond Shipping Company Ltd. ..Respondent Mr.V.Rambhadran for the Appellant. None for the Respondent. CORAM CORAM CORAM :- DR.S.RADHAKRISHNAN & :- DR.S.RADHAKRISHNAN & :- DR.S.RADHAKRISHNAN & ANOOP ANOOP ANOOP V.MOHTA,JJ. V.MOHTA,JJ. V.MOHTA,JJ. DATE DATE DATE : 22ND FEBRUARY, 2008 : 22ND FEBRUARY, 2008 : 22ND FEBRUARY, 2008 P.C. P.C. P.C. 1. Heard the learned Counsel for the Appellant. None appeared for the Respondent though served. We have perused the Affidavit of service dated 8th October, 2004 which clearly indicates that the above Appeal was admitted on 4th October, 2004 and thereafter the Respondent has been duly served. Still no one is appearing on behalf of the Respondent. 2. Mr.Rambhadran, the learned Counsel for the Appellant raised a limited issue in the above Appeal, contending that the learned Single Judge, by his order dated 23rd July, 2004 ought not to have revoked the leave granted under Clause 12 of the Letters Patent in Notice of Motion taken out by the Appellant/Plaintiff in the suit. However, if it was the contention of the :2: Defendants that the leave granted under Clause 12 of the Letters Patent ought to have been revoked, the Defendants ought to have taken out appropriate proceeding for revocation of the leave granted under Clause 12 of the Letters Patent. Admittedly, Defendant in this case did not take out any proceeding for revocation of grant of leave under Section 12 of the Letters Patent. In view thereof, only on this limited ground, we set aside the order dated 23rd July, 2004. However, we make it clear that the Respondent/Defendant is at liberty to take out appropriate proceeding for revocation of leave granted under Clause 12 of the Letters Patent, if so advised. 3. In view of the above, Notice of Motion No.2248 of 2002 taken out by the Appellant/Plaintiff in the original suit was not decided by the learned Single Judge on merit and the entire order is based on revocation of leave granted under Clause 12 of the Letters Patent. Hence, the said Notice of Motion No.2248 of 2002 stands revived before the learned Single Judge for disposal on its own merits in accordance with law. 4. We have perused order dated 14th October, 2004 granting Notice of Motion No.2897 of 2004 in the above Appeal No.616 of 2004, wherein paragraph No.2 reads as under: :3: 2. Pending the hearing and final disposal of the Appeal, the Respondent is restrained from selling, transferring, alienating, encumbering or disposing of the subject containers, particulars of which are mentioned in Exhibit-"O" to the Plaint. 5. The said order shall operate till the disposal of the above Notice of Motion No.2248 of 2002 before the learned Single Judge. 6. Appeal stands disposed of accordingly. (ANOOP (ANOOP (ANOOP V.MOHTA,J.) V.MOHTA,J.) V.MOHTA,J.) (DR.S.RADHAKRISHNAN,J.) (DR.S.RADHAKRISHNAN,J.) (DR.S.RADHAKRISHNAN,J.)