ssm 1 922.nms.2706.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 2706 OF 2009 IN SUIT NO. 530 OF 1984 Smt. Jyoti Rajendraprasad Shah and others ....Plaintiffs Versus Dinesh Mafatlal Patel and others ....Defendants ____________ Mr. Shailesh Thakkar i/b. Shailesh Thakkar & Co.for the Plaintiffs. Mr. D. R. Jhuriya for the Defendant No. 1. CORAM: R. M. SAVANT, J. DATED : 3 RD MAY, 2011. P.C.: In the above Motion, the Plaintiffs seek condonation of delay of 138 for filing the same and further seeks a relief that the suit be restored by setting aside the order dated 17 th January, 2009 dismissing the suit for non-prosecution. 2. The reasons for the delay as also non-appearance of the Plaintiffs and their Advocates on 17 th January, 2009 are disclosed in the Affidavit-in-Support of the Motion. The said reasons can been seen from paragraph nos. 3 to 5 of the said Affidavit-in- ssm 2 922.nms.2706.09 support of the Motion. 3. The learned Counsel appearing for the Defendant No. 1 opposes the Motion on the ground that the extent of the delay has not been mentioned as well as whether the Plaintiff No. 4 had infact executed the Power of Attorney in favour of the Deponent of the Affidavit-in-Support is also not clear. 4. In my view, the said objections of the learned Counsel for the Defendant No. 1 do not stand to reason in view of the averments made in the Affidavit-in-Support, as also having regard to prayer clause (a) of the Motion, wherein the delay of 138 days is sought to be condoned. In sofar as the Power of Attorney is concerned, at the time of the affirmation the stamp has been affixed by the office on the last page of the Affidavit-in-Support to indicate that the original Power of Attorney was produced by the Deponent at the time of affirmation. The Notice of Motion is therefore required to be allowed and the same is accordingly allowed in terms of prayer clauses (a) and (b). The interest which ssm 3 922.nms.2706.09 would be served if the Plaintiffs are directed to pay costs of Rs.3,000/- to the Defendant No. 1. The same to be paid within six weeks from date. The suit is accordingly restored to file. The order directing the Defendant No. 1 to furnish bank guarantee which was passed in the Motion filed by the Plaintiff would stand revived and the Defendant No. 1 is directed to renew the bank guarantee as and when the occasion arises, until further orders of this Court. (R. M. SAVANT, J.)