SBCMA No.1713/2008 M/s. Gaurav Overseas & Anr. Vs. M/s. Vinod Textiles 1 SBCMA No.1713/2008 M/s. Gaurav Overseas & Anr. Vs. M/s. Vinod Textiles DATE OF ORDER : - 14.1.2009 HON'BLE MR. PRAKASH TATIA, J. Mr.JR Beniwal, for the appellant. Mr. CS Kotwani, for the for the respondent. <><><> Heard learned counsel for the parties. The appellant's application filed under Order 9 Rule 13 CPC was dismissed by the trial court vide order dated 19th Nov., 2008. Learned counsel for the appellant fairly stated that because of the delay if the plaintiff has suffered, heavy cost may be imposed, but so far as, appellant's right to contest the suit of the plaintiff is concerned, that may not be denied. It is submitted that appellant engaged the advocate, who has put in appearance on behalf of the appellant- defendant in the trial court and take some steps, but due to the reasons given in the application, the case was not SBCMA No.1713/2008 M/s. Gaurav Overseas & Anr. Vs. M/s. Vinod Textiles 2 conducted by the appellant-defendant. It is submitted that it is a money decree and by delay, the plaintiff may suffer some loss in monitory terms and taking a lenient view, the appellant's all conduct may be condoned. Learned counsel for the respondent submitted that there was a gross negligence on the part of the defendant- appellant and, therefore, it may be directed that appellant may deposit the entire decretal amount in the trial court and court may even put a condition that the plaintiff will not withdraw that amount from the court. It is also submitted that on merit also, no case is made out for the condonation of delay and allowing the application filed under Order 9 Rule 13 CPC. Looking to the totality of the facts of the case and taking a lenient view it will be appropriate that delay in filing the application be condoned on payment of cost of Rs.10,000/- in a money suit of Rs.194,000/-. So far as prayer of the plaintiff-respondent for direction to the appellant to deposit the entire decretal amount in the trial court is concerned, is too harsh as well as will not be beneficial to any party as in case the non-petitioner will SBCMA No.1713/2008 M/s. Gaurav Overseas & Anr. Vs. M/s. Vinod Textiles 3 succeed in the suit then he will certainly get the interest over the amount but by depositing the amount in the court and depriving from the money both the parties will and may be adverse to the interest of both the parties for the purpose of grant of relief of interest. It is observed that the order is not a precedent, but has been passed taking a absolutely lenient view in the facts of the present case. In view of the above, the writ petition of the petitioner is allowed. The application filed under Section 5 of the Limitation Act as well application filed under Order 9 Rule 13 of the CPC are allowed and the defendant is directed to file written statement within a period of 20 days from today and shall not seek any unnecessary adjournment and shall cooperate the trial court in deciding the suit expeditiously. (PRAKASH TATIA), J. c.p.goyal/-