1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 3060 OF 2009 IN SUIT NO. 409 OF 1995 M/s. Pahlaj Bajaj & Co. ....Plaintiff Versus M/s. Bharat Distilleries Pvt. Ltd. ....Defendant Mr. M. R. Palan i/b. Mr. B. S. Chandnani, Advocate for the Plaintiff. Mr. Sandeep Parekh i/b. M/s.Gordhandas & Fozdar, Advocate for Defendant. CORAM : R. V. MORE, J. DATE : 26th FEBRUARY, 2010. P.C. : Heard learned Counsel for the respective parties. 2. The notice of motion is taken out for restoration of suit no. 409 of 1995 by condoning delay of 2068 days occurred in taking out the notice of motion. In paragraph 11 of the affidavit in support to the notice of motion, it is stated that the Clerk of the Plaintiff's Solicitors inadvertently failed to notice the above suit which was on Board 20th September, 2003. In paragraph 6 of the affidavit in support, it is stated that the Defendant also filed cross suit no.152 of 1997 and the said suit was placed before the learned Single Judge of this Court on 22nd April, 2009 for Ex-parte Decree. It is further stated that the Plaintiff's written statement was taken on record and the suit was adjourned to 15th June, 2009, and when the Plaintiff's Counsel pointed out to the Court that the Plaintiff's suit 2 no. 409 of 1995 also arises out of the same transaction and same may be clubbed together with suit no. 152 of 1997, he was then told that the suit no.409 of 1995 is already dismissed for default and thereafter, the present notice of motion is filed for reliefs stated above. 3. The learned Counsel for the Defendant submitted that the present notice of motion is not filed within limitation from the date of knowledge and secondly, the affidavit of the Clerk of the Plaintiff's Solicitors is not filed in support of the averment in paragraph 11 of the notice of motion and therefore, claimed dismissal of the notice of motion. 4. So far as the first ground of the objection is concerned, I do not find any substance, since the notice of motion is filed on 7th May, 2009 and therefore, it is within limitation from the date of knowledge of dismissal of the suit. So far as the second ground regarding affidavit of the Plaintiff's Solicitors' Clerk is concerned, I find some substance in the contention of the learned Counsel for Defendant. However, the Defendant's cross suit arising out of the same transaction is pending in this Court. In that view of the matter, I am of the opinion that interest of justice will be subserved, if the Plaintiff's suit no. 409 of 1995 is restored to file. The restoration will, however, be subject to payment of the cost by the Plaintiff to the Defendant which is quantified at Rs.5,000/-. Cost will be paid within a period of two weeks from today. The notice of motion is accordingly, allowed in terms of prayer clauses (a) and (b). (R. V. MORE, J.)