: 1 : 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.2689 OF 2006 NOTICE OF MOTION NO.2689 OF 2006 NOTICE OF MOTION NO.2689 OF 2006 IN IN IN SUMMONS FOR JUDGEMENT NO.373 OF 2002 SUMMONS FOR JUDGEMENT NO.373 OF 2002 SUMMONS FOR JUDGEMENT NO.373 OF 2002 IN IN IN SUMMARY SUIT NO.3566 OF 2001 SUMMARY SUIT NO.3566 OF 2001 SUMMARY SUIT NO.3566 OF 2001 M/s.Annapurna Apparels Ltd. .. Plaintiffs. Versus M/s.R.K.Sales .. Defendants. Mr.H.R.Shetty i/b.H.R.Shetty & Co. for plaintiffs. Mr.Jitendra Pathade i/b.R.V.Govilkar for defendants. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. DATE : 8th October, 2008. DATE : 8th October, 2008. DATE : 8th October, 2008. P.C. :- P.C. :- P.C. :- 1. The motion is taken out by the plaintiffs to have the summons for judgement restored which was dismissed for default on 9.3.2005. Affidavit-in-support is filed. 2. I have heard learned Advocates on both sides. The summons for judgement came to be dismissed on 9.3.2005. The affidavit-in-support shows that the representative of the plaintiffs was at Delhi and he could not attend the court. His absence is understandable. Sofar as Advocate for the plaintiffs is concerned, in paragraph 2 it is : 2 : mentioned that the Advocate was held up before the Tax Bench and could not appear before the court when the matter was called out and it was dismissed for default. The later part of the affidavit mentions that due to oversight, the matter was not tracked by the Advocate as well as the plaintiffs and they came to know about the order dated 9.3.2005 on 10.5.2006. This will clearly go to show that the plaintiffs were knowing that the matter is on board on 9.3.2005, no efforts seem to have been made to know at the end of the day as to what happened in the matter and no explanation is coming forth in the affidavit-in-support as to how the plaintiffs could not know the development in the suit till 10.5.2006. Even, no explanation is coming forth as to who told the plaintiffs about the dismissal of the summons for judgement on 10.5.2006. All this will clearly go to show that the plaintiffs were indolent and have not acted in a diligent manner in the matter of summons for judgement which came to be dismissed on 9.3.2005. 3. The plaintiffs applied for the certified copy of the order dated 9.3.2005 on 10.5.2006. Copy was ready on 21.6.2006 and it was received by the plaintiffs on 23.6.2006. The motion is taken out on 25.7.2006. : 3 : Technically, there is a delay of 2 days in filing notice of motion from the date of the knowledge of the dismissal of the summons for judgement. In any case, the plaintiffs have not been able to explain as to why no action was not taken soon after the dismissal of the summons for judgement and as to how they came to know about the dismissal only on 10.5.2006. The record clearly goes to show that the plaintiffs have exhibited indolence. In my view, in the absence of proper explanation, plaintiffs’ notice of motion cannot be granted. In the peculiar facts and circumstances, I am not inclined to saddle the plaintiffs with the costs of this motion. Hence the order :- O R D E R O R D E R O R D E R i) Plaintiffs’ Notice of Motion is dismissed. There shall be no order as to costs. (R.Y. GANOO,J.) (R.Y. GANOO,J.) (R.Y. GANOO,J.)