1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. APPEAL NO.32 OF 2007 IN NOTICE OF MOTION NO.1377 OF 2005 IN SUIT NO.4202 OF 1993 Hormaz Jal Muncherjee Appellant (Orig. Plaintiff) vs. CITIBANK N.A. Respondent (Orig.Defendant) Mr.J.P.Cama, Senior Advocate i/b.M/s.K.P.Anilkumar for the Appellant. Mr.Tushar Bhavsar i/b.M/s.Ramesh Makhija & Co. for the Respondent. CORAM : DR.S.RADHAKRISHNAN & ANOOP V. MOHTA,JJ. DATED : 11th March, 2008 P.C. Heard the learned counsel for the Appellant and the learned counsel for the Respondent-Bank. 2. Appeal is admitted. 3. The learned counsel for the Respondent waives service. 4. By consent, Appeal is taken up for final hearing. 5. We have perused the record and the impugned Order 2 dated 29th June, 2006. We have also perused the additional Affidavit of the Appellant dated 12.2.2008 as well as the Affidavit in Reply of the Respondent dated 10.3.2008. 6. It appears that the Appellant had filed Suit bearing No.4202/1993 against the Respondent-Bank for recovery of certain amount. In the said Suit, the Appellant had not served the writ of summons and again time was sought to get the returnable date extended. In that process, the Court directed the Appellant to appear before the Prothonotary & Senior Master. The Appellant had taken out various chamber summonses and various Notices of Motion in that behalf. Finally in the year 2004 when the Appellant had moved an application for extension of time before the learned Prothonotary & Senior Master, it came to light that the Suit was in fact dismissed by the learned Prothonotary & Senior Master on 6th September, 1998 for non-service of summons. There is no dispute that neither the Appellant nor the Respondent were aware of the same for almost 5 to 6 years. Thereafter, Notice of Motion No.174/2004 was taken up for setting aside the order of the learned Prothonotary & Senior Master dated 6th September, 1998, whereby Suit came to be dismissed. The learned Single Judge found that no sufficient cause was made out and accordingly Notice of Motion was dismissed. 3 7. After hearing both the learned counsel for the Appellant as well as learned counsel for the Respondent and after perusal of Affidavit dated 12.2.2008 as well as 10.3.2008 of the Respondent, we are of the view that there is no wilful negligence, inaction and want of bonafides on the part of the Appellant. The Plaintiff has filed a Suit for recovery of money and there is no reason why the Appellant ought to have been deliberately negligent in that behalf. Having regard to the larger interest of justice, we are inclined to set aside the Order dated 29sth June, 2006 passed by the learned Single Judge and allow the Notice of Motion No.1377/2005 whereby the above Suit No.4202/1993 stands restored, subject to the condition that the Appellant shall pay a sum of Rs.10,000/- (Rupees ten thousand) to the learned counsel for the Respondent as condition precedent. It is made clear that the said sum of Rs.10,000/- shall be paid within two weeks from today to the learned counsel for the Respondent failing which the above Order itself will automatically stand recalled and earlier order of the learned Single Judge dated 29th June, 2006 will stand revived. 8. The learned counsel for the Respondent-Bank waives service on behalf of the Respondent-Bank and seeks time to file written statement in the above Suit. Writ 4 statement shall be filed within a period of eight weeks from today. Thereafter discovery and inspection shall be completed by both the parties within six weeks thereafter. 9. Appeal stands disposed of in the above terms. [ANOOP [ANOOP [ANOOP V. MOHTA,J.] V. MOHTA,J.] V. MOHTA,J.] [DR.S.RADHAKRISHNAN, [DR.S.RADHAKRISHNAN, [DR.S.RADHAKRISHNAN, J.] J.] J.]