Cane Agro Energy India Ltd Through Its Authorized Signatory S D Suryawanshi v. M/S Crystal Engineers Through And For Partners Satish Pandharinath Bhagat And Others

IN THE HIGH COURT AT BOMBAY

APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 5957 OF 2016 Cane Agro Energy India Ltd.

Raygaon Post Hingangaon (Bk.) Tq. Kadegaon, Dist. Sangli Through its Authorized Signtory Shri. Santosh Dhondiram Suryawanshi Age: 40 years, Occu: Service, R/o. As above ....Petitioner (Orig.Defts. No.1)

Versus

1] M/s. Crystal Engineers, Registered Partnership Firm Through and for Partners Shri. Satish S/o Pandharinath Bhagat Age: 52 yrs, Occu: Business, Sow. Shubhada Ravindra Bhagat Age: 43 years, Occu: Business, Both R/o. Plot No. A-106, M.I.D.C. Shrirampur, Tq. Shrirampur Dist. Ahmednagar.

Through their G.P.A. Holder Shri. Pravin Vilasrao Ghogare Age: 41 years, Occu: Service, R/o. Suryanagar, Ward No. 7, Shrirampur, Dist. Ahmednagar ...Orig. Plaintiffs 2] Shri. Pruthviraj Sayajirao Deshmukh Age: Major, Occu: Business & Agriculture, 3] Shri. Dattatraya Dadu Suryawanshi Age: Major, Occu: Business & Agriculture 4] Shri. Shankarrao Anant Patil Age: Major, Occu: Business & Agriculture

5] Shri. Bhanudas Daji Shinde Age: Major, Occu: Business & Agriculture 6] Shri. Ramchandra Dadasaheb Gharge Age: Major, Occu: Business & Agriculture 7] Shri. Laxman Jaysing Kanse Age: Major, Occ. Business & Agriculture Respondents No. 2 to 7 are R/o. Raygaon, Post Hngangaon (Bk.) Tq. Kadegaon, Dist. Sangli.

[Respondents Nos. 2 to 7 are deleted as per leave granted by Hon'ble Court Dt.13-6-2016].

...Respondents

Mr. D.G. Nagode, Advocate for Petitioners.

Mr. S.S. Gangakhedkar, Advocate for Respondent No.1. CORAM : T.V. NALAWADE, J.

DATED : 15th December, 2016.

ORAL JUDGMENT :

1) Rule. Rule made returnable forthwith. By consent, heard both the sides for final disposal.

2) Present proceeding is filed to challenge the order made on delay condonation application which was filed for condonation of delay caused in filing written statement. When written statement was to be filed within 60 days from 12.12.2015 but even no application was filed on 11.2.2015, on date fixed for filing written statement. On 10.3.2016 also there was no application filed for seeking further time. Submission was

made that on that day, the Presiding Officer was on leave. But, this circumstance cannot be considered as the charge of the Court is always kept with other Presiding Officer. It appears that application came to be filed on 23.3.2016 and it was contended that there was delay of 12 days caused in filing written statement. The Trial Court has rejected the application by observing that no due diligence was shown and it was not possible to use discretion given to the Court. 3) The suit is filed for recovery of amount of Rs. 88.62 lakh. It is in respect of work executed. In view of nature of suit, this Court holds that opportunity needs to be given to defendant to take decision on merits. However, the possibility that present petitioner is trying to protract the decision also cannot be ruled out.

The respondent, plaintiff is required to spend on the present proceeding and he is required to come from Shrirampur, District Ahmednagar. In view of these circumstances, this Court holds that condition can be put on present petitioner to pay Rs. 25,000/- as costs to the respondent, plaintiff. The amount is to be deposited in the Trial Court on or before 4.1.2017. If the amount is not deposited in the Trial Court on or before the aforesaid date, it is to be presumed that the present proceeding is dismissed.

that 'No W.S. order' is set aside and delay is condoned and permission is granted to file the written statement. Petition is allowed accordingly.

Rule is made absolute in aforesaid terms.

[ T.V. NALAWADE, J. ] ssc/