IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2893 OF 2009 IN APPEAL NO.314 OF 2009 IN NOTICE OF MOTION NO.1673 OF 2006 IN SUIT NO. 1434 OF 2006 Bachher Investment Pvt.Ltd. ... Appellant Versus Model Mig Co-op. Housing Society Ltd. (Regd.) ... Respondent Mr. J.P. Sen i/by M/s. D. Dadhich & Kalambi for the appellant. Mr. Birendra Saraf i/by M/s. I.C. Legal for the respondent. CORAM : SWATANTER KUMAR, C.J. & A.M. KHANWILKAR, J. DATED : 9TH SEPTEMBER, 2009 P.C. We have heard the learned counsel appearing for the parties. The present appeal is directed against the order dated 9th June, 2009 vide which the notice of motion was dismissed despite the fact that the counsel appearing for the applicant was stated to be unwell and adjournment was prayed for. 2. We cannot ignore the fact that the learned Judge noticed that the notice of motion remained pending since 2006 and therefore, declined to grant any further adjournment and expected the applicant to engage another advocate and argue the matter on merits. May be, the interest of justice would have demanded a conditional order by imposition of costs without finally disposing of the notice of motion at that stage. 3. We are really not influenced by the contentions raised before us but without prejudice to the rights and contentions of the parties, we set aside the order passed by the learned Single Judge finding that justifiable reason was shown for absence of the counsel on 9th June, 2009 but the applicant having delayed the hearing of the application was certainly liable to pay some cost. 4. In these circumstances, we set aside the order and remand the matter for hearing of the notice of motion finally, however, subject to payment of Rs.2500/- as cost. The cost being condition precedent to the hearing of the notice of motion. Application does not survive and disposed of accordingly. CHIEF JUSTICE A.M. KHANWILKAR, J.