IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.4680 OF 2007 IN SUIT NO.765 OF 1995 Along with SUIT NO.765 OF 1995 Smt Bharti M.Sheth and ors. .. Plaintiffs. Vs M/s Fair Growth Investments Ltd .. Defendants Mr Girish Desai i/b M/s Vinod Mistry & Co for the plaintiffs. Mr D.P.Kamath, for the defendants. CORAM : D.B.BHOSALE,J. CORAM : D.B.BHOSALE,J. CORAM : D.B.BHOSALE,J. DATE : 3rd APRIL, 2008 DATE : 3rd APRIL, 2008 DATE : 3rd APRIL, 2008 PC: PC: PC: 1. Heard learned counsel for the parties. 2. Mr.Desai, learned counsel for the plaintiffs, submits that in view of the Notification issued under the provisions of Trial of Offences Relating to Transactions in Securities Act,1992, the suit filed by the plaintiffs even after its restoration cannot be prosecuted. In view thereof, he submits that the suit may be restored and the plaintiffs may be allowed to withdraw the suit with liberty to the plaintiffs to file appropriate proceedings before the competent authority for redressal of their grievance. 3. I perused the prayer clause (a) in the Notice of Motion which reads thus: "(a) That the order of dismissal dated 29th October, 2007 passed by His Hon’ble Lordship Mr Justice A.M.Khanwilkar in the above suit be set aside and/or modified and the above suit be restored on the file of this Honourable Court;" 4. It appears that on 29.10.2007, the following order was passed. "1. Inspite of liberty given under order dated 24th July,2007, no further material has been produced by the plaintiff. A request is made on behalf of the plaintiff for further time to do the needful as may be advised. That be done on or before 3rd December,2007 failing which the suit to stand dismissed for nonprosecution without further reference to the court. If steps are taken in time, place this matter on 5th December,2 007 under caption "undefended suit". 5. Thereafter, on 6.12.2007 the following order was passed. "By order dated 29th October, 2007, liberty sought by the plaintiffs was granted with direction to place further material on record by 3rd December, 2007, failing which suit was to stand dismissed for nonprosecution without reference to the court. There is no material on record to show compliance of this order. The order being self-operative, results in dismissal of suit. Order accordingly." Learned counsel for the plaintiffs submits that though the order dated 29.10.2007 states that "liberty sought by the plaintiffs was granted with direction to place further material on record by 3rd December, 2007, failing which suit was to stand dismissed for nonprosecution without reference to the court "no such liberty was sought, as is seen from the order dated 24.7.2007, and, therefore, there was no question of compliance of that order. In support of this contention, he invited my attention to the order dated 24.7.2007. The order dated 24.7.2007 reads thus: "1. Suit is placed under caption "undefended suit" in terms of the order, dated 24th February, 2000 and 9th July, 2007. None appears for the plaintiffs. Dismissed for nonprosecution. 2. Later on, counsel for the plaintiffs mentioned the matter and submits that he was busy in some other court, when the matter was called out. For the reasons mentioned across the bar, the order dismissing the suit for nonprosecution is recalled. The suit is restored to the file to its original number and proceeded for hearing forthwith. 3. Heard counsel for the plaintiffs. 4. This suit is placed under caption "Undefended suit" in terms of the order dated 24th February, 2000. The plaintiffs have filed affidavit of evidence as well as affidavit of documents. Compilation of the relevant documents is also produced. However, having regard to the nature of controversy, unless the Income tax Authorities were to record positive finding about genuineness of the transaction pressed into service in the present suit, in my opinion, the plaintiffs will have to be called upon to prove the transactions, which are to the extent of Rs.5,04,30,470.20 being the principal amount. 5. Counsel for the plaintiffs seeks time to take instructions and do the needful. Stand over to 21st August, 2007 under the same caption". 6. Keeping in view the submissions made by the learned counsel for the plaintiffs, as quoted in the first paragraph of this order, and considering the orders passed by this Court dated 29.10.2007 and 24.7.2007, I would not like to enter into a controversy whether such liberty was sought and granted to produce further material. The learned counsel, at the outset, submitted that he has instructions to withdraw the suit with liberty as stated above. Learned counsel for the respondent submits that the plaintiff has not prayed for setting aside the order dated 6.12.2007 and, in view thereof, the prayer made in the Notice of Motion cannot be granted. Perusal of order dated 6.12.2007 shows that it simply records that the order dated 24.7.2007, being self-operative order, results in dismissal of the suit. By that order, the suit has not been dismissed but the suit stands dismissed by order dated 29.10.2007. In the circumstances, I am inclined to allow this notice of motion in terms of the prayer clause (a) on the plaintiffs depositing Rs.5000/- as costs in the High Court Library (Original Side) within a period of two weeks from today. Order accordingly. SUIT NO.765 of 1995 . Learned counsel for the plaintiffs prays for withdrawal of the suit with liberty to the plaintiffs to file appropriate proceedings before the competent authority in view of the Notification issued under the Trial of Offences Relating to Transactions in Securities Act, 1992. The suit is disposed of as withdrawn with liberty as prayed. It is open for the defendants to oppose the proceedings, that will be filed by the plaintiffs on all grounds including the right of the plaintiffs to file such proceedings before the competent authority. While granting liberty, I shall not be understood to have examined the merits of the case or have expressed any opinion on the rights of the parties to adopt their remedies before the competent authority. With these observations, the Suit as well as Notice of Motion, both, stand disposed of. (D.B.Bhosale, J.) (D.B.Bhosale, J.) (D.B.Bhosale, J.)