vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1638 OF 2008 WRIT PETITION NO.1638 OF 2008 WRIT PETITION NO.1638 OF 2008 Shri Riyaj Jaharuddin Mulla ... Petitioner V/s. Shree Veershaiv Coop. Bank Ltd. & Ors. ... Respondents Mr.G.M. Savagave for Petitioner None for Respondent CORAM: SMT.NISHITA SMT.NISHITA SMT.NISHITA MHATRE, J MHATRE, J MHATRE, J. DATED: DECEMBER 3, 2008 DECEMBER 3, 2008 DECEMBER 3, 2008 P.C.: P.C.: P.C.: . The petitioner challenges the order passed on 19.11.2007 by the appellate Court established under the Maharashtra Cooperative Societies Act. By this order, the application of the petitioner for permitting him to pay the costs awarded to the respondent, beyond the period within which he was directed to pay the same, has been rejected. 2. The petitioner had filed a complaint before the Cooperative Court No.2 in Kolhapur for certain declarations and mandatory orders on 5.5.2004. This complaint was dismissed on 29.3.2005. An appeal was preferred by the petitioner on 25.4.2005 which was dismissed on 15.4.2006. This was because the advocate for the petitioner was absent on that date as also the : 2 : previous date on which the appeal had been fixed before the Court. 3. The petitioner, therefore, preferred Miscellaneous Application No.259 of 2006 for restoration of the appeal No.70 of 2005 on 6.6.2006. An application was filed on the same day by the petitioner for condoning the delay in filing the restoration application. On 14.6.2007, the appellate Court, Camp Pune allowed the application and directed the petitioner to pay Rs.1,000/- as costs by 17.7.2007 as a condition precedent for restoring the application. The petitioner has stated that on that day, i.e., on 17.7.2007, there appellate Court did not sit in Pune and the matter was adjourned to 14.8.2007. 4. An application was tendered on behalf of the petitioner for depositing the amount on 14.8.2007. The matter was then adjourned to 22.10.2007. Thereafter on 19.11.2007, the application of the petitioner was dismissed by the appellate Court camp at Pune on the ground that the last date of payment was 17.7.2007 and since the amount was not deposited by then, the order which was a conditional order had taken effect. 5. It is submitted on behalf of the petitioner that it was not possible for him to deposit the amount on the : 3 : stipulated date as the appellate Court was not functioning in Pune on that date. It is submitted that an application was made as soon as possible thereafter for acceptance of the amount which has been rejected by the appellate Court. The learned advocate for the petitioner has also pointed out that as directed by this Court by its order dated 9.9.2008, the petitioner has deposited Rs.2,500/- by way of costs with the trial Court. 5. Despite notices being served on the respondents, both through the Court as well as by private service, nobody has appeared for the respondents. Notice was also issued to the Respondents informing them that the petition would be disposed of finally at the stage of admission itself. However, the respondents have chosen to remain absent in the matter. 6. In my view, the order of the appellate Court must be set aside. The date by which the costs were to be deposited was 17.7.2007. The appellate Court did not have a camp in Pune on that day and the petitioner was unable to deposit the amount on that date. The Petitioner therefore cannot be faulted for not depositing the amount within the stipulated time. 7. The Petition is therefore allowed. Appeal is : 4 : restored. The respondents may withdraw the amount deposited in the trial Court as costs.