1 FA 1668 OF 2010 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.1668 OF 2010 Shri Hitesh Devji Patel .. Appellant -versus Bank of Maharashtra and ors .. Respondents. Mr. Sandip D. Shinde, for the Appellant. Mr. Sachin Joshi, for the respondent No.1. CORAM: A. S. OKA, J. DATED: 3rd May, 2011 P.C. 1. Heard learned counsel appearing for the appellant and learned counsel for first respondent. By order dated 1st April, 2011, this appeal was directed to be finally heard at the stage of admission. The appellant in this appeal is the first defendant in a suit filed by first respondent for recovery of a sum of Rs.2,84,969/- with interest. 2. As the appellant failed to file written statement, the trial Court proceeded under Rule 10 of Order VIII of the Code of Civil Procedure, 1908 (hereinafter referred to as the “said Code”). Accordingly the suit was decreed against appellant as well as the second and third respondents with interest @ Rs.11% per annum. 3. Learned counsel appearing for the appellant invited attention of the Court to roznama of the suit. He pointed out 2 FA 1668 OF 2010 that the appellant appeared in the suit on 13th April, 2010. He pointed out that an application made by the appellant on 19th June, 2010 for grant of time to file written statement was rejected. Immediately on the next adjourned date i.e. on 20th July,2007, the suit suit was kept for hearing without written statement on 27th July, 2007. He pointed out that on the very day on which the decree was passed, an application was made by the appellant at Exhibit 17 for setting aside earlier order to proceed without written statement. He pointed out that the written statement was tendered alongwith the said application. He submitted that before said application could be entertained, the impugned decree was passed. 4. Learned counsel appearing for the first respondent submitted that the appellant and other defendants did not file written statement within the maximum period of 90 days provided in the said Code. Therefore, the learned Judge was justified in passing a decree by taking recourse to Rule 10 of Order VIII of the said Code. He submitted that the decree passed by the trial Court is legal and no fault can be found with the said decree. 5. I have considered the submissions. I have perused the record of the suit. The perusal of the record shows that the suit summons was lastly issued on 19th March, 2010, in terms of order dated 23rd February,2010. Returnable date was fixed as 13th April,2010. On returnable date, the appellant, second 3 FA 1668 OF 2010 and third respondents appeared in the suit through separate advocates. The suit was fixed on 10th June, 2010 for filing written statement. By an order passed on application at Exhibit 14, made by the appellant and other defendants, time was granted till 19th June, 2010 to file written statement. 6. On 19th June, 2010, an application made by the appellant and other defendants for grant of time to file written statement was rejected and the suit was adjourned to 20th July, 2010. Immediately on the next date i.e. on 27th July, 2010, the impugned decree has been passed. The perusal of record of the trial Court show that on 27th July, 2010, the appellant and other defendants made an application at Exhibit 17 for setting aside the order to proceed with suit without written statement. Alongwith said application, a written statement was also tendered. Said application was not entertained as before filing the said application, the decree was passed on the very day. 7. Thus, on the very day on which the decree was passed under Rule 10 of Order VIII of the said Code, the aforesaid application was made alongwith which the written statement was tendered. Considering these peculiar facts, an opportunity deserves to be granted to the appellant to prosecute the application at Exhibit 17 and therefore, an order of remand will have to be passed subject to payment of costs. Considering the claim of in suit, the amount of costs will have 4 FA 1668 OF 2010 to be quantified at Rs.15,000/-. Hence, I pass the following order. ORDER i) The impugned judgment and decree dated 27th July,2010, is quashed and set aside and the Special Civil Suit No.440 of 2009 is restored to the file of trial Court. ii) The appellant shall pay costs of Rs.15,000/- to the first respondent on or before 10th June, 2011. Deposit of the amount of costs with the trial Court within the stipulated time shall be treated as sufficient compliance. iii) If the amount of costs is deposited by the appellant, the trial Court will permit the first respondent to file reply to application at Exhibit 17. The trial Court shall decide application at Exhibit 17 in accordance with law. All the contentions of the parties in the said application are kept open. iv) First appeal is partly allowed in above terms. v) The Registry is directed to forthwith transmit the Record and Proceeding to the concerned trial Court. (A. S. OKA, J.)