:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO.1055 OF 2008 PETITION NO.1055 OF 2008 PETITION NO.1055 OF 2008 Swadeshi Marketing & Retail Trading C. (I) Pvt. Ltd. ..Petitioners V/s Mr. Shivaji A. Camkire & Anr. ..Respondents Ms. Usha Rahi i/b Mayur Narendra & Co. for the petitioners Mr. P.J. Khemani, AGP for respondent No.2 CORAM CORAM CORAM : A.A. SAYED, J. : A.A. SAYED, J. : A.A. SAYED, J. DATE DATE DATE : 17TH APRIL, 2008 : 17TH APRIL, 2008 : 17TH APRIL, 2008 P.C. 1. Heard. Rule. By consent rule made returnable forthwith and heard finally. 2. This petition is directed against the order dated 16th October, 2007 passed by the Civil Judge, S.D. Pune, whereby the application to set aside the order dated 9-01-2006 of "No W.S." to the counter claim came to be rejected. 3. I have gone through the impugned order passed on 9th January, 2006. The application to set aside this order was filed some time on 13th June, 2007. :2: The trial Court has observed that the reasons mentioned in the application i.e. shifting of office from Thane to Mulund and thereafter from Mulund to Thane are not convincing and the application which is filed at belated stage, itself is sheer negligence on the part of the plaintiff. 4. The written statement in the normal course ought to have been filed within 30 days and in any case not later than 90 days. The application which is made on 13th June, 2007 specifically avers that during shifting of office, the old documents pertaining to the present case were misplaced and were located only sometime in March/ April, 2007. This fact of misplacement of documents was apparently not considered by the trial Court as the impugned order only refers to the shifting of the office of the petitioners. The respondent No. 1, who is the contesting respondent has been served; however, he has chosen not to appear and has not filed any reply to the petition. 5. After considering the impugned order and the material on record, in my view the fact that the :3: documents could not be traced because of the shifting of the office is a fact which ought to have been considered by the trial Court. In my view, looking to the peculiar facts of this case it would be an exceptional case, whereby the delay for filing the written statement to the counterclaim can be condoned subject to heavy costs I am inclined to award heavy costs since the delay is of more than one year and five months and the suit arises out of a claim of money. 6. I, therefore, set aside the impugned order of the trial Court and allow the plaintiff to file their written statement to the counterclaim. The same be filed within a period of four weeks, subject to payment of costs of Rs. 20,000/- to the respondent No.1. The amount be paid within three weeks. Payment of costs would be condition precedent for the filing of the written statement. 7. Writ Petition disposed of. Rule made absolute to the aforesaid extent. :4: ( A.A. SAYED, J.) A.A. SAYED, J.) A.A. SAYED, J.)