1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3213 OF 2009 IN SUIT NO.2978 OF 1984 Vardhman Builders ...Plaintiffs vs. State Bank of India Staff `Vaibhav Co-op Hsg.Soc. Ltd. & Anr. ...Defendants Mr.Bharat R. Yadav i/b Vigil Juris for the plaintiffs Ms Javer N. Mamniya for the defendant no.1 CORAM :A.S.OKA,J. DATE : DECEMBER 15, 2009 P.C. 1 Heard the learned counsel for the plaintiffs in support of the notice of motion. I have heard the learned counsel for the defendants who has opposed the notice of motion. 2 The prayer in the notice of motion is for restoration of the suit which was dismissed by this Court on 20th January 2009 for want of prosecution. 3 In the affidavit in support it is contended by the plaintiffs that they have appointed M/s.Gagrat and Company as their Advocates in the suit. It is stated that the said firm was dissolved in the year 2005. It is asserted that in July 2009, the plaintiffs were informed by one of the members of the first defendant-society 2 about the dismissal of the suit. Thereafter, the present notice of motion has been taken out on 25th August 2009. 4 The learned counsel for the defendants invited my attention to paragraph 12 of the reply of the 1st defendant. She submitted that in all probability, after the dissolution of the firm of the Advocates, the plaintiffs must have been informed about the dissolution. She submitted that is inconceiveable that the plaintiffs were not aware about the status of their own suit. She submitted that the concerned partner of M/s.Gagrat and Company who was attending the suit continues to be in profession and in fact, he is a partner of the firm of Advocates which is representing the plaintiffs. The learned counsel for the 1st defendant pointed out that the plaintiffs themselves are members of the 1st defendant-society and the case made out that one of the members of the society informed the plaintiffs about the dismissal of the suit is very vague and cannot be accepted. 5 I have given careful consideration to the submissions. The order dated 13th January 2009 passed by this court reads thus : . The Plaintiff s Advocates are M/s.Gagrat & Co. It is stated that this firm has been dissolved. Neither the plaintiffs nor their 3 Advocates are present. Place the suit for dismissal on 20th January 2009 . 6 The order itself records that the firm M/s.Gagrat and Company representing the plaintiffs has been dissolved and none appeared for the plaintiffs. Perusal of the order sheet shows that after the year 2005 when the notice of motion was disposed of, the suit appears to have come up for the first time on 13th January 2009 when neither plaintiffs nor defendants were present. 7 In the circumstances, a case is made out for restoration of the suit as it cannot be said that there is any neglect on the part of the plaintiffs in prosecuting the suit. The fact that the firm of the Advocates representing the plaintiffs has been dissolved, is an admitted fact. 8 It is true that by restoration of the suit, a prejudice will be caused to the defendants. The prejudice which will be caused to the first defendant- society can be compensated by directing the plaintiffs to pay substantial amount of costs. The amount of costs is quantified at Rs.25,000/-. 9 The notice of motion is accordingly made absolute in terms of prayer clauses (a) and (b) subject to the plaintiffs paying costs of Rs.25,000/- to the 1st 4 defendant within a period of six weeks from today. The payment of costs will be a condition precedent. If compliance is not made with this order, the order of dismissal of the suit will stand. 10 The learned counsel for the plaintiffs seeks continuation of the interim relief operating in the suit. The learned counsel for the 1st defendant pointed out that in paragraph 10 of the reply it is disclosed that third party interests have been created by the 1st defendant. 11 The suit has been dismissed for non prosecution in January 2009. In view of this fact and the fact that a statement has been made in paragraph 10 of the reply that third party interests have been already created, as of today, the interim relief is not restored with liberty to the plaintiffs to take out a fresh notice of motion for grant of ad-interim or interim relief. It is clarified that as and when a fresh notice of motion is taken out, the prayer for grant of ad-interim or interim relief will be considered on its own merits. JUDGE