1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CIVIL APPLICATION NO. 9904 OF 2009 IN FIRST APPEAL (ST.) NO. 21126 OF 2009 Shri Halasidhanath Sahakari Sakhar Karkhana Limited Shankaranandnagar, Nipani ...Applicant Versus Sunanda w/o Sanjivan @ Sunil Aghav and Ors ...Respondents ..... Mr. P.R Patil, advocate for the applicant Mr. M.P. Kale, advocate for respondent Nos. 1 to 3. ..... CORAM: R.G. KETKAR, J. DATED: 19TH NOVEMBER, 2009 PER COURT:- 1 This application is taken out for condoning the delay of 233 days, caused in filing the first appeal in this Court. In support of this application, I have heard Shri. Patil, learned counsel for the applicant and Shri Kale, learned counsel for respondent Nos. 1 to 3. Though respondent No.4 is served, nobody appears for him. 2 In the application, it is submitted that the Commissioner for Workmen's Compensation and learned C.J.S.D. Ambajogai, passed 2 an order on 3.12.2008, in the proceeding filed by respondent Nos. 1 to 3, under the Workmen's Compensation Act, 1923 (for short “The Act”). The applicant authorized Shri. M.G. Kalyan Shetty, legal head, to appear before the trial Court. The written statement was filed opposing the W.M.C. No. 19 of 2006 on 10.4.2007. The applicant has placed on record a letter dated 15.2.2008 addressed by advocate R.B. Lomte to Shri. Kalyan Shetty, wherein it is set out that despite giving instructions telephonically, no instructions were received by him and he expressed desire to retire from the case. He also informed Shri. Kalyan Shetty to conduct the case and that he is passing no instructions purshis. Advocate Shri, Lomte, placed on record notice sent to Shri. Kalyan Shetty dated 15.2.2008 and also an acknowledgment to that effect. Copy thereof was sent to Shri. Kalyan Shetty. The applicant has also placed on record no instructions purshis given by advocate Shri Lomte on 15.2.2008. By notice dated 11.3.2008, issued by the Superintendent, C.J.S.D. Ambajogai to the applicant, it was indicated that their advocate Shri. Lomte, expressed his desire not to conduct the matter and therefore, on the next date, applicant should appear on 28.3.2008. 3 It is the case of the applicant that all these communications though were addressed to the applicant, they were through Shri M.G. Kalyan Shetty. The applicant came to know of passing of the order only when it received notice under Order 21 Rule 22 of the C.P.C. 3 1908 on 16.4.2009. After receipt of this communication, the applicant issued show cause notice on 13.7.2009 to Shri Kalyan Shetty. It was replied by him on 29.7.2009. That reply is also placed on record. In the reply, he contended that the notice dated 11.3.2008 issued by the Superintendent of C.J.S.D. was not brought to his notice. He further stated that he has placed on record the letters which were brought to his notice. 4 The applicant further asserted that they consulted the advocate after acquiring the knowledge of the order passed by the trial court. Advocate advised the applicant to file application under Section 12(2) of the Act for apportionment of liability between 4th respondent herein and the applicant. An application was accordingly filed on 4.7.2009. It was however, rejected by the Commissioner on 20.7.2009. Immediately thereafter, the application for certified copy was made on 28.7.2009 and the certified copy was received on 22.8.2009. Thereafter immediately first appeal was filed on 22.9.2009, after complying with the requirement of Section 30 of the Act. 5 In support of the application, learned counsel for the applicant submitted that the applicant had authorized Shri Kalyan Shetty. On behalf of the applicant, written statement was also filed. On account of negligence on the part of Kalyan Shetty, the applicant should not suffer. The applicant being Sugar factory has to rely upon its 4 employees and Kalyan Shetty being legal head of department, the applicant authorized him to conduct the case. However, it should not suffer because of negligence on the part of Shri. Kalyan Shetty. 6 On the other hand, Shri Kale, learned counsel for the respondent Nos. 1 to 3, contended that the applicant has not explained the delay properly and that no sufficient cause is made out for condoning the delay. He submitted that Sanjivan died in an accident because of the negligence on the part of the employee of the applicant. The respondent Nos. 1 to 3, being the legal heirs and representatives of deceased Sanjivan, should not suffer. 7. I have considered the first submission. It is true that the applicant had authorized Shri. Kalyan Shetty to conduct the case. It is also matter of record that the applicant had filed written statement on 10.4.2007. Advocate Shir Lomte, sent letter to Shri Kalyan Shetty on 15.2.2008. The court notice dated 11.3.2008, was sent to the applicant through Shri Kalyan Shetty. 8 In the circumstances, I am of the opinion that because of negligence on the part of Shri Kalyan Shetty, the applicant should to suffer. If the respondent Nos. 1 to 3 can be adequately compensated by ordering payment of costs, the interest of justice would be served by condoning the delay. It is also relevant to note that by filing the 5 appeal belatedly, the applicant was not to get any unfair advantage over respondent Nos. 1 to 3. 9 In the circumstances, I am of the opinion that, the applicant has made out sufficient cause for condoning the delay. However, the applicant is required to pay costs. In my opinion, the interest of justice would be met if the delay is condoned by imposing cost of Rs.25,000/- on the applicant, to be paid by the applicant to respondent No.1, within a period of four weeks from today. The amount shall be deposited by the applicant in this Court within a period of four weeks. If the amount of Rs.25,000/- is deposited, the applicant No.1 is permitted to withdraw the said amount, without furnishing any security. If the amount is not deposited, within the stipulated period, the civil application will stand dismissed without further reference to the Court. 10 Civil application is disposed of. (R.G.KETKAR, J.) rlj/