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.2026 OF 2006 OF MOTION NO.2026 OF 2006 OF MOTION NO.2026 OF 2006 IN IN IN ARBITRATION ARBITRATION ARBITRATION PETITION NO.165 OF 2005 PETITION NO.165 OF 2005 PETITION NO.165 OF 2005 IN IN IN AWARD AWARD AWARD NO.21 OF 2000 NO.21 OF 2000 NO.21 OF 2000 Unique Integrated Transport & Management Consultancies Pvt Ltd. ...Petitioners Versus Mahanagar Telephone Nigam Ltd ...Respondents Dr. K.K.Khanna for the Petitioners. Ms Shah for the Defendants. CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATED DATED DATED : SEPTEMBER 20th, 2007. : SEPTEMBER 20th, 2007. : SEPTEMBER 20th, 2007. P.C.: P.C.: P.C.: 1. The office has misplaced the record of the Notice of Motion as well as original Arbitration Petition. The learned counsel appearing for the Petitioners has supplied copies of Notice of Motion and affidavit in support. The Arbitration Petition filed by the Petitioners has been dismissed for default on 06th June, 2005. The present Notice of Motion is taken out for restoration of the said Petition. As there is a delay of 348 days in filing the Notice of Motion, a prayer has been made for condonation of delay. Apart from the affidavit in support of this Motion filed by Mr.Mahmmad Illias, Manager of the Petitioners, there is an affidavit filed by Dr.K.K.Khanna, Advocate for the ... 2 ... Petitioners setting out the reason for delay as well as the reason why none appeared for the Petitioner on the day on which Arbitration Petition appeared on board. 2. The learned counsel appearing for the Respondent opposed the Notice of Motion by pointing out that there is no explanation whatsoever for the gross delay of 348 days. He submitted that the Petitioner has been negligent all along and even the present Notice of Motion for restoration was earlier dismissed in default. 3. I have considered the submissions. In so far as absence of the Petitioner on 06th June, 2005 is concerned, in affidavit in support, a contention has been raised that on 02nd May, 2005 the Petition was adjourned for two weeks after the re-opening of the Court after summer vacation. There is an affidavit filed by Dr.K.K.Khanna, Advocate appearing for the Petitioner in support of this Notice of Motion. In the said affidavit it is stated that from 29th April, 2005 the said advocate was out of India attending to various proceedings in different courts as set out in paragraph No.4 of the said affidavit. He has stated that he was under an impression that the Arbitration Petition was scheduled to come up on 20th June, 2005. Reasons have been assigned in both the affidavits for non-filing the ... 3 ... Notice of Motion immediately after dismissal of the Arbitration Petition. It is stated that search could be taken by the Advocate only on 26th April, 2006 to find out the orders passed by the Court. 4. In my view, considering the averments made in both the affidavits, sufficient cause is made out for condonation of delay and for restoration of the Arbitration Petition. 5. It is true that some prejudice will be caused to the Respondent. Therefore, the Petitioners will have to pay costs to the Respondent quantified at sum of Rs.5,000/-. 6. Hence, Notice of Motion is made absolute in terms of prayer clauses (a) and (b) subject to the Petitioners paying costs of Rs.5,000/- to the Respondent within a period of six weeks from today. Payment of costs will be a condition precedent. If compliance is made with the order of payment of costs, Arbitration Petition shall be listed for admission on 29th October, 2007. JUDGE JUDGE JUDGE