1 nms-2630-09 in s-2781-01 mmj IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2630 OF 2009 IN SUIT NO.2781 OF 2001 Hanjarmagar Co.op Hsg. Society No.1 & 6 & Ors. ....Plaintiffs V/s. B.M.C. & 9 Ors. ....Defendants Mr. M.P.Vashi i/b M.P.Vashi & Associates for the Plaintiffs Mr. S.P.Memon for Defendant Nos.2 to 5 CORAM : R.M. SAVANT, J. DATE : 10TH MARCH, 2011. P.C. :- 1 By the above Notice of Motion, the Plaintiffs seek restoration of the suit which has been dismissed on account of the order dated 10-9-2008. The Plaintiffs also seek condonation of delay in filing the above Application. 2 It appears that at an earlier stage, in Notice of Motion No.1965 of 2002 which was moved by the Plaintiffs for ad-interim relief, an order came to be passed on 8-10-2002 directing the Plaintiffs to make one Hanjar Builders Pvt Ltd. as party Defendant to the said Suit. Thereafter, the amendment in terms of the said order was not carried out. However, it appears that the suit was kept on 27-3-2008 by the Addl.Prothonotary to enable the plaintiffs to take steps. In the suit, as originally filed, one Hanjar 2 nms-2630-09 in s-2781-01 Builders Pvt Ltd., which was a partnership firm was joined as a party Defendant, but in the course of the hearing of the Notice of Motion, it was pointed out that the said partnership firm was converted into a private limited company and, therefore, the private limited company known as Hanjar Builders Pvt.Ltd, was required to be joined as a Defendant. The amendment was to be carried out to the said extent. The Learned Additional Prothonotary & Senior Master has dismissed the suit on two fold grounds, that the Writ of Summons has not been served as also on the ground for not carrying out the amendment. It is required to be noted that in interlocutory applications the Defendant Nos.3 to 5 have appeared and contested the said applications. It is also required to be noted that the said Hanjar Builders, which was a partnership firm earlier was also a party Defendant. 3 In so far as the Writ of summons is concerned, Shri Vashi, the Learned Counsel for the Plaintiffs, has tendered a copy of the Writ of Summons which he says, has been endorsed by the concerned Defendants in evidence of having received the said Writ of Summons. In my view, therefore, case for restoration of the said suit is made out. Though there is some delay on the part of the Plaintiffs in carrying out the amendment etc., the Defendants can be compensated by imposing appropriate costs for the inconvenience that is caused to them. 4 Notice of Motion is, therefore, allowed and made absolute in terms of prayer clauses (a) & (b). However, the benefit of this Order will enure to the Plaintiffs only when they deposit the costs of Rs.5,000/- in this Court within a period of two weeks from today, which is a condition 3 nms-2630-09 in s-2781-01 precedent and only upon the Plaintiffs furnishing the receipt of deposit of the said costs, the office would restore the suit. Defendant Nos.3 to 5 would be at liberty to withdraw the said amount on deposit by the Plaintiffs. 5 Notice of Motion is accordingly disposed of. (R.M.Savant, J.)