: 1 : SD IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.100 OF 2008 NOTICE OF MOTION NO.100 OF 2008 NOTICE OF MOTION NO.100 OF 2008 IN IN IN WRIT PETITION NO.1007 OF 1999 WRIT PETITION NO.1007 OF 1999 WRIT PETITION NO.1007 OF 1999 Dave Brothers, . V.N. Goradia, Proprietor ...Applicant V/s. Balu Sitaram Korde & Anr. ...Respondents Mr.R.A. Shaikh, Advocate, i/b. V.N. Golawala & Co., for the Applicant in support of Notice of Motion. Mr.N.M. Ganguli, Advocate, for Respondent No.1. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. DATE : 7TH APRIL, 2008. DATE : 7TH APRIL, 2008. DATE : 7TH APRIL, 2008. P.C.: P.C.: P.C.: 1. Heard learned Counsel appearing for the applicant in support of the Notice of Motion. Heard learned Counsel appearing for the 1st respondent who has opposed the Notice of Motion. 2. The Writ Petition filed by the petitioner was dismissed in default on 22nd September, 2005. The prayer in this Notice of Motion is for restoration of the Petition as well as restoration of the interim relief. 3. The Notice of Motion is opposed by the learned : 2 : Counsel appearing for the respondents by pointing out that there is a gross unexplained delay of 891 days in taking out the Notice of Motion. He submitted that there is no explanation for the said delay. He relied upon the averments made in the affidavit-in-reply filed by the 1st respondent. 4. I have carefully considered the submissions. In the affidavit in support of the Notice of Motion filed by one V.N. Goradia, Proprietor of the Petitioners, it is stated that when the Writ Petition was fixed for hearing on 22nd September, 2005, the Advocate’s clerk was not well and therefore the board could not be watched. It is stated that that is the reason why the Advocate was not aware that the Writ Petition was listed on the board of this Court for final disposal. 5. According to the case made out by the Proprietor of the petitioners, he came to know about the dismissal of the Writ Petition for the first time on 30th November, 2007 when a notice of demand dated 14th November, 2007 was issued by the Tahsildar for executing the order which was impugned in the Writ Petition. This is the explanation for delay in filing the Notice of Motion. : 3 : 6. The Writ Petition filed by the petitioners was admitted for final hearing and stay was granted subject to deposit of sum of Rs.1,10,000/-. The said amount has been deposited by the petitioners and the same is already withdrawn by the 1st respondent. 7. In my view, a case is made out for restoration of the Writ Petition and the interim relief granted in the Writ Petition. However, considering the long delay involved, the petitioner will have to compensate the 1st respondent by paying heavy costs. The amount of costs is quantified at Rs.10,000/-. Hence the Notice of Motion is made absolute in terms of prayer clauses (a) and (b) subject to condition of the petitioners paying costs quantified at Rs.10,000/- to the 1st respondent within a period of four weeks from today. Deposit of the amount of costs with this Court within the stipulated time will be treated as sufficient compliance. 8. It is made clear that payment of costs will be a condition precedent and on failure of the petitioners to pay the amount of costs, the order of dismissal will stand. : 4 : 9. If compliance is made by depositing or paying the requisite amount of costs within the stipulated time, it is obvious that the Writ Petition and interim relief will stand restored and therefore the proceedings in the nature of execution of the impugned order cannot proceed further. 10. The Writ Petition shall be placed for final hearing in the week commencing from 2nd June, 2008 high upon board on the weekly board. In the meanwhile, it will be open for the 1st respondent to file reply on or before 6th May, 2008. [ABHAY S. OKA, J.] [ABHAY S. OKA, J.] [ABHAY S. OKA, J.]