Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1361 OF 2009 Dattatray Maharaj Kalambe Jaol Sahakari Bank Ltd. ... Petitioner v/s M/s.Rajeshree Enterprises & ors. ... Respondents Mr.Pradeep S. Gole for the petitioner. Mr.S.C.Thatte for the respondent Nos.1 to 3. CORAM: SMT.NISHITA MHATRE, J. DATED: 16TH JUNE, 2009 P. C.: 1. The petitioner is aggrieved by the order passed by the Co-operative Court condoning the delay in preferring an application for setting aside the ex-parte judgment and award. That order has been confirmed by the appellate Court. The appellate Court allowed the application subject to payment of cost of Rs.7,000/-. The demand notice in this petition is annexed at Exh.B. It indicates that it was issued on 2.12.2003. The application for setting aside the ex-parte order does not disclose that the demand notice was received on 3.11.2006. However there is a signature on the demand notice of the respondent having received the same. Therefore it would indicate that it was received on 2.12.2003 itself. 2. Both the Courts below have not considered the fact that the respondent has not approached the Court immediately after receipt of the demand notice but in fact after the period of three years. The Trial Court in its impugned order has observed that the petitioner had relied on certain judgments of the Supreme Court. However, he thereafter proceeds to observe that the applicant has not given any cogent or reliable ground for his non-appearance and that, in view of the observations of the Apex Court, it was necessary to condone the delay. 3. In my opinion, when the Trial Court found that there was no cogent or reliable reasons for the respondent’s non-appearance, the Trial Court ought not to have condoned the delay. In fact, the Trial Court has not taken into account the provision of law which requires a party aggrieved by an ex-parte order to approach the Court within 30 days from the date of the judgment. The respondent obviously had knowledge of such a judgment and award being passed, in any event on 2.12.2003 when the demand notice was served. Therefore, the respondents ought to have approached the Court immediately thereafter. 4. In view of this, the petition is allowed. Rule made absolute. No order as to costs. 5. After this order was passed, the learned counsel appearing for the respondent, on instructions from the proprietor of respondent No.1, Prakash Krishna Mardhekar, who is present in Court, states that the respondent is willing to deposit a certain amount and the order of the Trial Court and the Appellate Court should be confirmed. 6. This is a reasonable request made by the learned advocate for the respondent. In the event the petitioner deposits an amount of Rs.5 lacs within four weeks from today, the Trial Court may hear the application for setting aside the ex-parte award. It is made clear that, if the amount is not so deposited with the petitioner bank, the demand notice may be acted on by the petitioners. In case the amount is deposited, it shall be credited to the loan account of the respondent. .....