ssm sm sm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION APPEAL APPEAL APPEAL NO. 486 OF 2007 NO. 486 OF 2007 NO. 486 OF 2007 IN IN IN NOTICE NOTICE NOTICE OF MOTION NO. 2449 OF 2005 OF MOTION NO. 2449 OF 2005 OF MOTION NO. 2449 OF 2005 IN IN IN SUIT SUIT SUIT NO. 931 of 1985 NO. 931 of 1985 NO. 931 of 1985 The Minerals & Metals Trading Corporation of India Ltd. ...Appellant. Vs. M/s. International Nickel Services (U.K.) Ltd. ...Respondent. Mr. Rafeeq Peermohideen i/by M/s. Pravin Mehta & Mithi and Co. for the Appellant. Mr. Kunal Shah i/by M/s. Bhatt & Saldhana for Respondent No.2. CORAM CORAM CORAM : DR.S.RADHAKRISHNAN : DR.S.RADHAKRISHNAN : DR.S.RADHAKRISHNAN & ANOOP ANOOP ANOOP V. MOHTA, JJ. V. MOHTA, JJ. V. MOHTA, JJ. DATED DATED DATED : 28TH JANUARY, 2008 : 28TH JANUARY, 2008 : 28TH JANUARY, 2008 P.C. P.C. P.C. . Heard the learned counsel for the Appellant and the learned counsel for Respondent No.2. We had by an order dated 8th January, 2008 directed the learned counsel for the Appellant to inform the Respondent Nos.1 and 3 and their advocates that the Appeal will be taken up for final disposal at the stage of admission itself. ( 2 ) 2. Pursuant to the said directions, the Appellant has already served appropriate notices on Respondent No.3, M/s. Oriental Fire and General Insurance Co. and also M/s. Crawford Bayley & Co. Advocate for Respondent No.1. The Appellant has also filed an affidavit dated 21st January, 2008 proving the same. By consent of the learned counsel on behalf of Respondent No.2, the Appeal is taken up for final hearing as inspite of service, Respondent Nos.1 and 3 are not present before the Court. 3. We have perused the impugned order dated 16th April, 2007, whereby the learned Single Judge has dismissed the Notice of Motion No.2449 of 2005 taken out by the Appellant/ Plaintiff whereby the Plaintiff has sought for recall of order dated 5th August, 2005, whereby the learned Single Judge has dismissed the suit in view of the absence of both the Plaintiff and the Defendant. 4. The Plaintiff in support of the Notice of Motion No.2449 of 2005 filed an affidavit of one Bharat G. Shinde who has been working as a Clerk in the employment of M/s. Bhaishankar Kanga and Girdharlal, Advocate for the Plaintiff and he has categorically ( 3 ) stated, in paragraph Nos. 3 and 4, the reasons as to why he could not attend the office and also failed to inform the learned Advocate about the matter on 5th August, 2005. He has also categorically mentioned that due to unprecedented floods in Bombay on 26th July, 2005 and thereafter for almost a month, train services were completely dislocated in various areas at Bombay. Under the aforesaid facts and circumstances, it is necessary to recall the order dated 5th August, 2005. The learned Single Judge has proceeded to dismiss the Notice of Motion for restoration of the Suit solely on the ground that the plaintiff could not show that the clerk was a registered clerk. There is no dispute that the said clerk is an employee of the said solicitor firm who was assigned the duty of checking the board and communicate the same to his employer about the board position. Under the aforesaid facts and circumstances, the learned Single Judge ought to have exercised the discretion in favour of the Plaintiff specially when the suit is of the year 1985 i.e. almost 20 years later it came up for hearing, and the suit ought not to have been dismissed specially in view of the fact that transport services were badly affected due to unprecedented floods in Mumbai. In ( 4 ) the aforesaid facts and circumstances, we are inclined to set aside the above order of dismissal of Suit and allow the Notice of Motion No. 2449 of 2005. The impugned order is set aside and the suit is restored to file. 5. The learned counsel for Respondent No. 2 has filed written statement of defendant No.2 dated 5th June, 2003. The same is taken on record and the same is placed in the original Suit Proceedings. 6. The Appeal stands disposed of in the above terms. The parties are at liberty to move the Learned Single Judge for placing the above Suit for final hearing. (ANOOP (ANOOP (ANOOP V. MOHTA, J.) V. MOHTA, J.) V. MOHTA, J.) (DR.S.RADHAKRISHNAN,J.) (DR.S.RADHAKRISHNAN,J.) (DR.S.RADHAKRISHNAN,J.)