1. Learned counsel Mr.J.M.Patel has appeared for opponent No.1 and no one is present for the other opponents, though served. The present application for restoration has come to be filed after detailed order dated 10.4.2012 in main SCA No.23274 of 2006, whereby the petition is dismissed for default with cost quantified at Rs.25,000/-. It was stated at the bar that that amount is already paid by the applicant to respondent No.1.
2. According to the application, learned counsel for the applicant had reached this Court on 10.4.2012, but due to unavoidable circumstances and personal difficulty, he had to rush back. It is stated in the application, but not admitted by learned counsel for the respondent, that learned counsel for the applicant had mentioned the matter at 11.00 a.m. with prior consent of learned advocate for the respondents. Thereafter, when the matter was called out, a colleague of learned advocate for the applicant is stated to have renewed the request for a short adjournment, but that statement is not born out from the record and appears to be incorrect. It is also stated in the application that if the present application is not allowed, the applicant-bank would suffer irreparable loss and legal injury for no fault on their part.
3. It is clearly mentioned in order dated 10.4.2010 in the main petition that the matter was called out more than once on that day, after request for adjournment of learned counsel for the applicant on vague ground was rejected. Thereafter, learned counsel Mr.J.M.Patel, appearing for the respondent, had made a serious grievance that, by order dated 15.11.2006, the petition was admitted and ex-parte ad-interim relief was granted, after which no hearing had taken place for confirmation or vacation of the ad-interim relief. Instead, at one stage, the petition was dismissed for default on 10.02.2011; and even thereafter, hearing of the petition on merits was practically avoided on one or other ground, even as decree was obtained by the respondent and review application preferred therefrom was rejected. Thus, it was submitted by learned counsel Mr.Patel that the pendency of petition and continuation of ad-interim relief was amounting to abuse of the process of court. These and other observations in the said order make it, prima facie, clear that the applicant was not willing to proceed with the hearing of the petition, for six years after obtaining an ad-interim relief. Under the circumstances, learned counsel Mr.Patel urged that, in case the court was inclined to allow the present application, it may be clarified that the order of ad-interim relief granted in the main petition shall not stand revived. Presently, learned counsel for the applicant and learned counsel Mr.J.M.Patel have expressed their willingness and commitment to argue the main petition, before appropriate court, on merits at the earliest opportunity and not to take any adjournment on flimsy grounds or by sheer absence of either of them.
4. Having regard to the facts and circumstances and on perusal of the aforesaid order dated 10.4.2012, the application is allowed in the interest of justice, SCA No.23274 of 2006 is ordered to be restored to file and listed before appropriate court on 19.07.2012, as suggested by learned counsel, with the condition that the original ex-parte ad-interim relief granted in the said petition does not stand revived. Rule is made absolute accordingly, with no order as to costs.
Sd/-
( D.H.Waghela, J.) (KMG Thilake) Top