Order 2

Order Details: Notice of Motion
Pdf Text: 29
09.10.2024 Court Room No.31 - Commercial Court, Mumbai
Coram : Shri V. S. Hingne, Additional District Judge,
Sr. No.37
Notice of
Motion No.
100436/2024
in
Commercial
Suit No.
101254/2021
(Disposed)
Bank of India Vs Dinesh Vasant Palye
Adv. Jagannathan present for plaintiff.
Heard plaintiff on Notice of Motion No. 100436 / 2024.
Perusal of record shows that, my Learned
Predecessor, vide Order Dt. 10.03.2022, directed the Suit
to proceed without Written Statement of defendant No. 1.
Thereafter, defendant failed to secure presence
of defendant No. 2.
Hence, vide Order Dt. 17.07.2023 and
23.08.2023, plaintiff was directed to take steps. However,
plaintiff failed.
Hence, vide Order Dt. 29.09.2023, the Suit
came to be dismissed for want of prosecution.
Through Notice of Motion No. 100436 / 2024
(Exh.5 Dt. 31.01.2024), plaintiff prayed for restoration of
the Suit. It is contended that, despite best efforts, the
plaintiff bank could not serve the summons on defendant
No. 2. Meanwhile, defendant No. 1 approached the bank
for settlement of account and repaid the settled amount.
However, during 12.10.2022 to 14.06.2023, the Court was
vacant. Thereafter, the officer who was dealing with the
matter got transferred to another branch. Advocate clerk
was also hospitalized. For many other such reasons, the
bank and the lawyers could not make submissions before
the Court on regular dates. Suit pertains to public money.
Hence, the Suit be restored, so that, the bank could
withdraw the Suit.
Learned Counsel for plaintiff relied upon, Patel
Engineering Vs. United Estate, 2011 (6) MhLJ 571,
wherein it has been observed by the Hon’ble Bombay
High Court in Para No. 7 as :
If the Defendant has also not appeared when
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09.10.2024
Sr. No.37
Notice of
Motion No.
100436/2024
in
Commercial
Suit No.
101254/2021
(Disposed)
the Suit was dismissed there is no provision for
even notifying the Defendant of the application
for restoration of the Suit.
Considering the submissions that, the Suit pertains to
public money and plaintiff wants to restore the Suit for
withdrawing it, so as to regularize its audit, then in that
circumstances, the Notice of Motion can be allowed.
Accordingly, the Points are so answered and the Notice of
Motion is disposed off, by following Order :
ORDER
1. Notice of Motion No. 100436 / 2024, is allowed.
2. Commercial Suit No. 101254 / 2021 shall stand
restored, forthwith, on the stage, on which it
was on 29.09.2023.
3. Parties be informed about their right to
challenge this Order and period of limitation for
it.
4. Order pronounced in Open Court.
5. Record of Notice of Motion shall be part of
Commercial Suit No. 101254 / 2021.
Judge
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