1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1935 OF 2009 Lark Wires & Infotech Ltd. .. Petitioner versus M/s.Delta Enterprises .. Respondent Mr.S.L.Shah i/by M/s.Shah Legal for petitioner. Mr.Vaibhav Mehta i/by M/s.Vaibhav Mehta & Associates for the respondents. CORAM : A.S.OKA, J. DATE : 23rd February 2010. P.C.: . The submissions of the learned counsel appearing for the parties were heard on the last date. By this writ petition under Article 227 of the Constitution of India, the petitioners have challenged the order dated 20th November 2008 passed by the trial Court. 2. The petitioners are the defendants and the respondents are the plaintiffs. The suit summons of the suit filed by the respondents was served to the petitioners on 4th October 2007. The petitioners entered appearance on 4th June 2008 and filed a reply to application for interim relief taken out by the respondents. An application was made by the petitioners on 4th June 2008 for condonation of delay in filing the written statement. By the impugned order the said application has been rejected by the learned trial Judge. 3. The learned counsel appearing for the petitioners invited my attention to the averments made in the said application. He pointed out that specific case made out in the application is that the petitioners are having their registered office at Kolkatta and the directors of the petitioners stay in Kolkatta. One Mr.Avinash Laddha who signed 2 and verified the application on behalf of the petitioners stated that he is in-charge of the petitioner’s office in Bombay. The learned counsel pointed out that the reasons as to why written statement could not be filed have been set out in the said application. He submitted that the trial Court has adopted hyper-technical view of the matter. He submitted that the trial Court ought to have allowed the application subject to payment of costs. 4. The learned counsel appearing for the respondents opposed the petition. He invited my attention to the finding of the trial Court based on attendance register produced by the petitioners. He pointed out that from September 2007 till August 2008 the authorised representative of the petitioners Mr.Avinash Laddha was available in Bombay on number of days and he could have always given instructions to the advocate to draft the written statement. My attention has been invited to affidavit dated 20th February 2010 filed by one Mr.Baskar Augustine, Constituted Attorney of the respondents. It is pointed out that a direction has been issued by the trial Court to the petitioners to deposit a sum of Rs.1,30,000/- per month by way of compensation and the said order has not been complied with. The learned counsel appearing for the respondents submitted that no interference is called for. 5. I have given careful consideration to the submissions. It must be noted here that the submissions were fully heard on 16th February 2010 and after hearing the learned counsel appearing for the respondent, the petition was adjourned till today only to enable the counsel for the petitioners to take instructions as to whether the petitioners were ready and willing to pay exemplary costs. After the matter was fully argued, the respondents could not have filed affidavit dated 20th February 2010. 6. Perusal of the application made by the petitioners at Exhibit 10 shows that the 3 authorised representative of the petitioners Mr.Avinash Laddha has set out the reasons as to why he could not give instructions to the concerned advocate to draft the written statement. It is pointed out that the said authorised representative was continuously travelling and none of the directors of the petitioner are available in Bombay. In the impugned order the said ground has been rejected by the trial Court by observing that on few days during September 2007, October 2007, November 2007 and December 2007 the said authorised representative was available in Bombay. The learned trial Judge has observed that the authorised representative was available in Bombay on 11 days in September 2007, on 5 days in October 2007, on 12 days in November 2007 and only on 2 days in December 2007. 7. Perusal of the averments made in the petition show that on the very day on which the petitioners entered the appearance in the suit, they filed the application on which impugned order has been passed. Moreover, on the same day a reply was filed to the application for interim relief taken out by the respondents in the suit. The documents produced by the petitioner show that except for few days the authorised representative of the petitioner was not available in Bombay. In the circumstances, considering the fact that delay was of about 200 days, the trial Court ought to have permitted the petitioners to file written statement. It is not the case of the respondents that progress of the trial was hampered due to failure of the petitioners to file written statement. As far as compliance with order dated 17th August 2009 is concerned, if according to the respondents the petitioners have not complied with the said order, the remedies of the respondents are open. 8. This was a case where the application at Exhibit 10 ought to have been allowed subject to petitioners paying costs to the respondents. The amount of costs is 4 quantified at Rs.50,000/-. Accordingly, a demand draft in the sum of Rs.50,000/- drawn in favour of the respondents has been handed over by the learned counsel appearing for the petitioners to the learned counsel appearing for the respondents in the open Court. 9. Hence, petition is disposed of by passing following order: : O R D E R : (a) The impugned order dated 20th November 2008 is quashed and set aside. (b) The notice at Exhibit 10 is hereby made absolute and the petitioners are permitted to file written statement within a period of two weeks from the date on which authenticated copy of this order is produced before the trial Court. (c) The petitioners shall pay costs of Rs.50,000/- to the respondents. The amount has been already paid. (d) The petition is allowed in above terms. (A.S.OKA,J)