abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 836 OF 2006 IN ARBITRATION PETITION NO. 431 OF 2004 D.P.A. Dadia & Ors. .. Petitioners V/s Kusumben M. Dadia & Ors. .. Respondents Mr.D.V. Merchant with Mr.L.V. Bommer i/b Shaunak Satpute & Co. for the petitioners. Mr.Bipin Joshi for respondents nos.1 to 5. CORAM : D.G. KARNIK, J. DATE : 24TH APRIL 2009 P.C. P.C. P.C. : 1. This motion is taken out by the petitioners for setting aside the order of dismissal of Arbitration Petition No.431 of 2004 for non-prosecution. 2. Arbitration Petition No.431 of 2004 was listed on board for hearing on 4th July 2005 and the - 2 - petitioners and their advocate were absent when called twice. The petition was therefore dismissed for non-prosecution. 3. The petitioner had initially filed Notice of Motion No.1977 of 2005 for restoration but the same was withdrawn with liberty to file fresh motion as the affidavit of the concerned person, who was subsequently enrolled as an advocate, was not then filed. Now this motion has been filed along with the affidavit of Mr.Paras Parekh. He has stated that on 4th July 2005 he was working as a trainee with the firm representing the petitioners. At that time, he had not registered himself with the Bar Council and, therefore, though he was present in the Court, his presence was not recorded. The Petitioners have thus taken care of appointment of a firm of advocates but the firm instead of entrusting the matter to an advocate had instructed a trainee advocate to watch it and call the counsel. Obviously he could not address the Court as he was not registered. In my view, for the fault of the advocates’ firm, the petitioners should not suffer. 4. There is however delay in filing of the motion. The present motion has been filed after 92 days of the withdrawal of the earlier motion. Again that delay appears to have been caused by reason of the fault of - 3 - the advocates’ firm, to whom the papers were entrusted. Learned counsel for the respondent submits that there is no specific prayer for condonation of delay. Implicit in the prayer for restoration, there is a prayer for condonation of delay. The delay is sufficiently explained. 5. In the circumstances, the motion deserves to be allowed but subject to payment of costs. In my view, the costs would have to be exemplary costs because apparently there is default on two occasions and also delay in making of the motion. 6. For these reasons, the delay is condoned and the motion is allowed in terms of prayer clause (a) subject to payment of costs of Rs.10,000/- payable to the respondents as a condition precedent. The costs shall be paid within 4 weeks, failing which this motion shall stand dismissed without further reference to the Court. (D.G. KARNIK, J.)