- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION NOTICE NOTICE NOTICE OF MOTION NO.4122 OF 2005 OF MOTION NO.4122 OF 2005 OF MOTION NO.4122 OF 2005 IN IN IN SUIT SUIT SUIT NO.3597 OF 1993 NO.3597 OF 1993 NO.3597 OF 1993. M/s. Supreme Builders. ..Plaintiffs. vs. Mohsin S/o. Abdul Taiyab Jaferji Rasiwala & Ors. ..Defendants. .... Mr. Lalit Jain, a/w. Mr. Swapnil Bangur, i/b. LJ Law, for the Plaintiffs. None for the Defendants. .... CORAM CORAM CORAM: S.J.KATHAWALLA, J. S.J.KATHAWALLA, J. S.J.KATHAWALLA, J. DATE DATE DATE : 7TH JANUARY 2009 : 7TH JANUARY 2009 : 7TH JANUARY 2009. P.C.: P.C.: P.C.: . This suit is filed by the plaintiffs fora decree of specific performance against the defendants in respect of an agreement for sale dated 22nd March 1990. The suit is filed in the year 1990. Thereafter, the plaintiffs took out notice of motion no.2767 of 1993 for appointment of Court Receiver and for injunction in respect of the suit property. On 12th November 1993, an application for ad-interim reliefs was made and the same was granted in terms of prayer clause (a) of the said motion. Before the notice of motion could be finally heard, the plaintiffs on 26th June 1997 withdrew the - 2 - motion with liberty to file a fresh motion. 2. The plaintiffs are unable to explain as to why the said motion was withdrawn though the order of injuntion was in force in favour of the plaintiffs and against the defendants. 3. After a period of 8 years i.e. 23rd December 2005, the plaintiffs have taken out the present notice of motion seeking reliefs which were earlier sought in notice of motion no.2767 of 1993. An application for ad-interim reliefs was made on 24th January 2006 which was rejected. The plaintiffs thereafter took out another motion being no.438 of 2006 seeking restoration of notice of motion no.4122 of 2005 on the basis of an incorrect impression that the present notice of motion no.4122 of 2005 had been dismissed. Since none appeared when the said notice of motion no.438 of 2006 reached hearing, the same was dismissed by an order of this Court dated 24th January 2007. 4. The present advocate submit that they took charge of the above suit only on 24th January 2007. They have - 3 - submitted before this Court that the plaintiffs have not served the notice of motion no.4122 of 2005 on the defendants till date. The earlier advocate had tried to serve the notice of motion on the defendants on 24th January 2006 but was unable to do so, since the defendants address was changed. It is submitted that the present advocates are not provided with the present address of the defendants by their clients and therefore, they have filed a chamber order on 3rd December 2008 for substituted service. 5. As stated earlier, the suit is filed in the year 1993. No explanation is given as to why the earlier notice of motion in which orders were granted in favour of the plaintiffs on 12nd November 1993 was withdrawn, and as to why the present notice of motion was taken out 8 years after the withdrawl of the first motion. Again, there is no explanation as to why no steps were taken to serve the present notice of motion taken out on 23rd December 2005 on the defendants till date despite having knowledge that the defendants are not available at their address shown in the plaint atleast since 24th January 2006. From the aforesaid facts, it is clear that the plaintiffs’ conduct in pursuing the notice of motion - 4 - taken out for interim orders is not only callous but unexplainable. Under the circumstances, this Court is constrained to dismiss the notice of motion taken out by the plaintiffs. However, there will be no order as to costs. 6 Notice of motion stands dismissed with no orders as to costs. 7. Suit is adjourned to 21st January 209 for framing of issues. [S.J.KATHAWALLA, [S.J.KATHAWALLA, [S.J.KATHAWALLA, J.] J.] J.]