1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. NOTICE OF MOTION NO.4398 OF 2007 IN SUMMONS FOR JUDGMENT NO.380 OF 2003 IN SUMMARY SUIT NO.2647 OF 1998 Mahindra and Mahindra Ltd. ..Plaintiff. Vs. NEPC Micon Ltd. ..Defendant. .... Mr. K.H. Mody i/b JMB Partners. Mr. R.M. Pardiwala i/b Mulla & Mulla & Craigie Blunt & Caroe for the Defendant. .... CORAM : DR. D.Y. CHANDRACHUD, J. 27th July, 2009. P.C. : 1. The Motion is for restoration of a Summons for Judgment which was dismissed in default on 24th January, 2005. In the affidavit in support it has been stated that the Plaintiffs had taken out a Summons for Judgment (1177 of 1999). Prior to the hearing of the Summons for Judgment, a Chamber Summons for amendment of the Plaint was taken 2 out. Accordingly the Summons for Judgment was withdrawn with liberty to file a fresh Summons for Judgment after the Plaint was amended. Subsequently, a fresh Summons for Judgment was taken out upon the amendment of the Plaint to which the Defendants filed a reply. The Defendants took out a Chamber Summons (being Chamber Summons 58 of 2005) seeking revocation of the leave under clause XII of the Letters Patent which had been granted. The Summons for Judgment taken out by the Plaintiff was dismissed in default on 24th January, 2005. The Chamber Summons taken out by the Defendant was dismissed on 25th July, 2005. It has been stated that there was a change in the advocates appearing on behalf of the Plaintiffs and the Plaintiffs were under the bonafide belief that their Summons for Judgment had been adjourned till the Chamber Summons was heard and disposed of. When the Chamber Summons was attempted to be served on the earlier advocates for the Plaintiffs, the advocates stated that they had ceased to appear for the Plaintiffs. The Chamber Summons was served upon the Plaintiffs. The papers were collected from the erstwhile advocates and the present advocates were appointed on 1st July, 2005. On 27th September, 2007 an 3 application was made to the Prothonotary and Senior Master requesting that the Summons for Judgment be placed on Board for hearing. When the Summons for Judgment was placed before the Court on 26th October, 2007 the advocates for the Defendant informed the Court the Summons for Judgment had been dismissed on 24th January, 2005. 2. The Plaintiffs have stated that they are not aware as to whether the name of their previous advocate was shown on Board on 24th January, 2005; but in any event they were not informed by the earlier advocates of the Summons for Judgment having been dismissed. The Plaintiffs have stated that they became aware of the dismissal only on 26th October, 2007 when on their advocate’s precipe, the Summons for Judgment was placed on Board when it transpired that it had already been disposed of in default. The present Motion has been taken out on 20th November, 2007. 3. Having heard the learned counsel appearing on behalf of the parties, I am of the view that the interests of justice would require that the Summons for Judgment be restored subject to the payment of costs. 4 It is admitted that there was a change in advocates appearing on behalf of the Plaintiffs. There is no reason to disbelieve the Plaintiffs when they state on affidavit that they were not informed by the earlier advocates of the dismissal of the Summons for Judgment in default and that they obtained knowledge of the fact only on 26th October, 2007 when the present advocates made a request for placing the Summons for Judgment on Board. There has been no negligence or want of bonafides on the part of the Plaintiffs. In these circumstances, the Notice of Motion is made absolute in terms of prayer clauses (a) and (b) subject to the payment of costs quantified at Rs.3,000/-. The payment of costs within a period of one week from today shall be a condition precedent. Subject to due verification that the costs have been paid, the Summons for Judgment shall be listed for hearing on 17th August. 2009. *****