gst 1 wp10005.09.sxw IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION. WRIT PETITION NO. 10005 OF 2009. Sanjay Tanaji Jamdar & Anr. .... ..... .... Petitioners. V/s Shankar Rangrao Kadam.... .... .... Respondent. Mr.Bhushan A. Walimbe, Adv. For the petitioners. Mr.S.A.Rajeshirke, Adv. For the respondent. CORAM: B.R. GAVAI, J. 19th April, 2011 PC: Rule. Rule made returnable forthwith. By consent taken up for hearing. By way of present petition the petitioner challenges the impugned order dated 12.3.09 vide which the application filed by the present petitioner for codonation of delay in filing the application for setting aside the ex-parte award passed by the learned Tribunal in MACP No.268/02 (Old No.244/99). 2. It appears that there was an accident between the two motor cycles one driven by the petitioner and the other driven by the respondent. There were two counter claims filed one by the petitioner and the other by the respondent. It appears that in the petition filed by the present respondent petitioner had not filed written statement and as such no written statement order came to be passed. Subsequently it further appears that an ex-parte award was passed. Subsequently the claim petition filed by the petitioner was also dismissed on the ground that in the earlier proceedings filed by the respondent ngligence on the part of present petitioner was proved. 3. The petitioner thereafter filed an application for setting aside the ex-parte award along with an application for condonation of delay since according to the petitioner there was delay of about 9 months. The application came to be gst 2 wp10005.09.sxw rejected. 4. Learned counsel for the petitioner submits that since the claim of the petitioner was initially filed at Sangli and subsequently it was transferred to Islampur and since notices were issued only to the counsel for the petitioner, the petitioner was not aware of the proceedings being transferred to Islampur and as such he could not defend the said proceedings. It was therefore submitted that it is in the interest of justice that the delay be condoned. 5. Learned counsel for the respondent vehemently opposes the petition. He submits that the delay has been deliberate and intentional. He further submits that the petitioner was prosecuting the claim petition filed by him and there was no reason as to why he should not have defended the present proceedings. 6. In pursuance of the order passed by this Court dated 30.11.09 the amount of Rs.2,04,000/- is deposited in this Court. It is also not in dispute that the petitioner has already deposited some amount in the trial Court. It is also not in dispute that substantial amount from the said amount has been withdrawn by the respondent. 7. It is settled law that length of delay is not the ground for refusing the condonation of delay. What is material is as to whether party has made out sufficient cause or not for condonation of delay. In the present case it is the case of the petitioner that after proceedings were transferred to the Islampur his counsel did not inform him about the transfer of the proceedings. In any case, the petitioner was not to gain anything by not defending the proceedings before the learned Tribunal. It is also not in dispute that both the petitioner as well as the respondent have received injuries in the same accident. In that view of the matter I find that it would be in the interest of justice that the parties are permitted to get their dispute resolved on merits rather than foreclosing the door of justice on technical grounds. In so far as the prejudice that is caused to the respondent is concerned, same can be compensated by saddling the costs. 8. Rule is therefore made absolute in terms of prayer clauses (a) and (b). gst 3 wp10005.09.sxw However this shall be subject to payment of costs which are quantified at Rs. 25,000/-. The petitioner shall deposit the amount of costs within a period of six weeks from today in the learned Tribunal. On deposit of costs respondent- claimant would be entitled to withdraw the same. The amount deposited in this Court shall be transferred to the learned Tribunal at Islampur which amount along with the remaining amount in the trial Court deposited by the petitioner shall be invested in Fixed Deposit Receipt for a period of one year and disbursement of the same would depend upon decision of the learned Tribunal in the application filed by the present petitioner for setting aside ex-parte award. 9. Learned Tribunal shall decide the application filed by the present petitioner for setting aside ex-parte award within a period of six months from today.