1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.4320 OF 2009 IN SUIT NO.993 OF 1983 The State Trading Corporation of India Limited ..... Plaintiffs. V/s Shree Krishna Woollen Mills Pvt. Ltd. ..... Defendants. Mr. D.G. Dhanure i/b Jurisconsultus for plaintiffs. Mr. Mayur Shetty alongwith Ms. Vaijayanta Shete i/b M/s Gagrats for defendants. CORAM: V. M. KANADE, J. DATE : 27TH JANUARY, 2010 P.C.:- 1. This Notice of Motion is filed by plaintiffs seeking restoration of the suit which was dismissed by my brother S.C. Dharmadhikari, J. The suit was transferred to the Court Commissioner for recording evidence and the learned Judge, after having noticed that plaintiffs are not taking proper steps and are not acting diligently, was pleased to dismiss the suit for want of prosecution. 2. The learned Counsel appearing on behalf of plaintiffs, 2 firstly submitted that the learned Judge ought to have given one more opportunity to plaintiffs to lead evidence before the Court Commissioner. It is submitted that few documents were not available and, therefore, plaintiffs had sought an adjournment. He submitted that, in fact, on the date on which the matter was placed before the Court at the instance of the Court Commissioner, plaintiffs were about to get those documents and though a request was made to give extension of time for submitting Court Commissioner’s Report, the learned Judge was pleased to dismiss the suit. It is submitted that plaintiffs have good case on merits and, therefore, the learned Judge erred in not granting further extension of time. Secondly, it is submitted that the matter had appeared on Board for the purpose of granting extension of time to the Commissioner for recording evidence and, as such, there was no reason to dismiss the suit for want of prosecution. 3. The learned Counsel appearing on behalf of defendants firstly raised a preliminary objection regarding maintainability of the Notice of Motion. He submitted that the Notice of Motion would not have been filed under Order IX Rule 13 of the Civil Procedure Code. He submitted that, in the present case, the suit had been dismissed under Order XVII Rule 2 sub-clause (b) and, as such, the only remedy in such a case, is to file regular appeal. He then invited my attention to the order passed by the learned Judge and pointed out that more than one opportunity was given to 3 plaintiffs to lead evidence and in spite of that no steps were taken by plaintiffs. 4. The learned Counsel appearing on behalf of plaintiffs has relied upon judgments of the Apex Court and this Court and contended that if reasonable cause was shown by plaintiffs, suit should be restored and should be decided on merits. 5. After having heard the learned Counsel appearing on behalf of plaintiffs and defendants at length, in my view, this is not a fit case where discretion vested in this Court to restore the suit should be exercised in favour of plaintiffs. The learned Judge has observed various instances wherein plaintiffs had not acted diligently. The present suit was filed in 1983 and more than 25 years have passed and in spite of ample opportunity being given to plaintiffs on various occasions, plaintiffs were not able to place on record relevant documents and complete the examination of their witnesses. 6. Taking into consideration the reasons given by my learned brother, in my view, this is not a fit case where leniency should be shown to plaintiffs for the purpose of restoring the suit. There cannot be any dispute regarding the ratio of the judgments on which reliance is placed by the learned Counsel appearing on behalf of plaintiffs. Without going into the question raised by the defendants regarding 4 maintainability of the Notice of Motion, I am of the view that even assuming that the said Notice of Motion is maintainable, no case is made out by plaintiffs for restoration of the suit. 7. Notice of Motion is dismissed. (V.M. KANADE, J.)