1 WP 9276/10 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 9276 OF 2010 Eureka Forbes Limited .. Petitioner V/s Carona Limited & Ors. .. Respondents Mr. Mayur Khandeparkar with Mr. Nitin Parekh i/b MLS Vani & Associates for the petitioner. Mr. D.M. Vyas i/b Mr. P.K. Vyas for respondent no.1. CORAM : D.G. KARNIK, J. DATE : 12TH JANUARY 2011 P.C. : 1. Rule, returnable forthwith. 2. Mr. Vyas waives service of the Rule for respondent no.1. Service of the Rule on the other respondents is waived as they are co-defendants in the suit and their presence is not necessary. 3. By consent, taken up for hearing forthwith. 4. This petition is directed against an order dated 25th August 2010 passed by the Small Causes Court, Mumbai, rejecting the application of the petitioner to condone the delay in filing of the 2 WP 9276/10 written statement. 5. Writ of summons of a suit filed by the respondent no.1 was served on the petitioner on 11th September 2008. The petitioner took out an application for rejection of the plaint under Order VII Rule 11 of the Code of Civil Procedure (for short “the Code”) on 24th April 2009. That application was rejected on 17th August 2009. Thereafter the petitioner tendered the written statement on 8th September 2009 along with an application for condonation of delay. According to the petitioner, it did not file the written statement as the application under Order VII Rule 11 of the Code was pending and no sooner the application was dismissed, the petitioner filed the written statement. The delay therefore ought to be condoned. 6. The petitioner was required to file the written statement within 30 days of service of writ of summons, i.e. by 10th October 2008. The period could be extended by the Court for sufficient cause upto the maximum period of 90 days which period also expired on or about 9th December 2008. The application for rejection of the plaint was made only on 24th April 2009, that is after the expiry of the date for filing of the written statement. Therefore, the fact that the application for rejection of plaint 3 WP 9276/10 under Order VII Rule 11 of the Code was pending was no ground for the petitioner not to file the written statement. 7. In this view of the matter, in the first instance I was not inclined to condone the delay and permit the petitioner to file the written statement. Learned counsel for the petitioner, however, invited my attention to an order dated 26th August 2010 passed by this Court (Coram: A.S. Oka, J.) in Civil Revision Application No. 157 of 2010 wherein a co-defendant, who had tendered the written statement on the same day on which the petitioner had tendered, was permitted to file the written statement. Since the decision has been rendered by a coordinate Bench of this Court permitting the co-defendant to file the written statement on almost similar ground, it would not be appropriate to refuse liberty to the petitioner file the written statement. 9. For these reasons, the writ petition is allowed and the impugned order is set aside. The petitioner is permitted to file the written statement, however subject to payment of costs of Rs.10,000/- as a condition precedent. Costs shall be deposited in the trial Court within 4 weeks. In the event the costs are not deposited within 4 weeks, the permission to file written 4 WP 9276/10 statement hereby granted shall stand revoked and the writ petition shall stand dismissed without further reference to the Court. Rule is made absolute to the extent indicated above. (D.G. KARNIK, J.)