1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2535 OF 2005 IN NOTICE OF MOTION NO.1713 OF 2005 IN CHAMBER SUMMONS NO.582 OF 2005 IN SUIT NO.4579 OF 1999 Hindustan Construction Co.Ltd. ...Plaintiff. vs. Alliance Corporate Financial Services Ltd. ...Defendant. --- Ms.Mallika Iyer i/b. M/s.Harish Joshi & Co., for Plaintiff. Mr.J.N.Mehta i/b M/s.B.K.&Girdharilal, for Defendant in support. . CORAM: D.K.DESHMUKH,J. DATED: 2nd April,2007 2 P.C.:- 1. This is a notice of motion taken out by the defendant for restoration of the notice of motion which was dismissed for default. That notice of motion was for restoration of the chamber summons which was also dismissed for default. This itself shows that the defendant has not been diligent in prosecuting any of the proceedings. The defendant has secured an order for listing this notice of motion for hearing out of turn. But when the notice of motion was fixed on board, none appeared for defendant. The reason given why the defendant did not appear is that two advocates of the defendant were busy, one was busy before the Arbitrator and the other was busy before the City Civil Court. The Advocates have, however, not given explanation as to when their matter was before the High Court, why they kept themselves away from the High Court and appeared before the Courts subordinate to High Court. There is no explanation to be found as to why representative of the defendant did not remain present, if the Advocates for defendant were not in a position to appear before the Court. It is clear that taking out this notice of motion is only delaying tactics adopted by the defendant, and therefore, in my opinion, it would not be in the interest of justice to restore the notice of motion. The notice of motion which has been dismissed for default for 3 restoration of which this notice of motion has been taken out, as observed above, was taken out for restoration of the chamber summons. The chamber summons was taken out for issuing third party notice under Rule 107 of the Original Side Rules. The Chamber summons was taken out after six years of the defendant being served with the writ of summons, when according to the Rule a third party notice has to be taken out within a period of four weeks from the service of the writ of summons. In the chamber summons, there is no prayer made for condonation of delay. The affidavit filed in support of the chamber summons also does not disclose sufficient cause for not taking out the chamber summons within the time allowed by law. It appears that the defendant has taken out various proceedings and not prosecuting them diligently in order that just to delay the trial of the court. Therefore, taking out this proceeding amounts to abuse the process of the Court. The notice of motion is therefore, disposed of. 2. The defendant is directed to pay as and by way of cost of this notice of motion Rs.10,000/- to the plaintiff. ---