1 WP 5648.2011 - [ J ] IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5648 OF 2011 Suresh S/o Gendalal Khandelwal Age : 47 Years, Occ. : Agriculture, R/o : Rajarai Takli, Tq. Khultabad, Dist. Aurangabad. .... PETITIONER V E R S U S 1. The State of Maharashtra Through its Secretary, Co-operative & Textile Department, Maharashtra State, Mantralaya, Mumbai. 2. Rupee Co-operative Bank Ltd. Branch at Khadkeshwar, Aurangabad. 3. M/s Khandelwal Traders Through its proprietor Mrs. Alka Shankar Khandelwal Age : 45 Yrs., Occ. Business/ Household, R/o : MIG-16, Avishkar Colony, N-6, CIDCO, Aurangabad. 4. Shankar S/o Gendalal Khandelwal 2 WP 5648.2011 - [ J ] Age : 48 Yrs., Occ. Busines, R/o : MIG-16, Avishkar Colony, N-6, CIDCO, Aurangabad. 5. Dinesh S/o Champalal Munoth Age : 50 Yrs., Occ. Business, Prop. Arihand Trading Company, Khadkeshwar, Aurangabad. .... RESPONDENTS Mr. G.R.Nagargoje, Advocate for the Petitioners. Mr. R.P.Phatake, Asstt. Govt. Pleader for State. Mr. A.D.Soman, Advocate for Resp No. 2 CORAM :S.V. GANGAPURWALA, J. DATE OF JUDGMENT : 29/08/2011 ORAL JUDGMENT : 1. At the out set, Mr. Nagargoje, the learned counsel for the petitioner submits that the respondent nos. 3 to 5 were deleted before the appellate Court. However, the respondent no. 5 is served. The learned counsel seeks leave to delete respondent nos. 3 and 4. Respondent nos. 3 and 4 deleted at the risk of the petitioner. 2. Rule. Rule made returnable forthwith. With the 3 WP 5648.2011 - [ J ] consent of the learned counsel for the parties, taken up for final hearing. 3. Heard the learned counsel for the respective parties. 4. The petitioner had filed Appeal before the Co-operative Appellate Court challenging the Judgment and Award of the Co- operative Court. There was delay of 45 days. Along with the Appeal, the petitioner has also filed an application for condonation of delay. The same was dismissed for default. The petitioner has filed an application for restoration along with the application for condonation of delay of 195 days in filing the restoration application. The said application is rejected. Aggrieved thereby, the present Writ Petition is filed. 5. Mr. Soman, the learned counsel for the respondent no. 2 vehemently opposes the petition and submits that even on merits, the applicant has no case. The petitioner has not given any reasons and the expression “ sufficient cause ” can not be stretched to such an extent that the said expression would loose its efficacies. The learned counsel relies on the Judgment of the learned Single Judge 4 WP 5648.2011 - [ J ] of this Court in the case of Kamalbai Narasaiyya Shrmal V/s Ganpat Vithalrao Gavare reported in 2007 Mh.L.J. - 1- 807. 6. It is the settled law that when technical consideration and cause for substantial justice are pitted against each other, the cause for substantial justice would prevail. 7. No doubt, the delay is of 195 days in filing the restoration application. The application shows that the applicant could not remain present due to the circumstances detailed in the application. The learned counsel engaged by the petitioner also could not attend the matter due to his difficulty. It is submitted by Mr. Nagargoje, the learned counsel for the petitioner that for the lapse of the Advocate, the litigant should not suffer. 8. Taking into account the above conspectus of the matter, I am inclined to condone the delay in filing the restoration application. However, the petitioner also deserves to be mulct with cost. 9. In the result, the Writ Petition is allowed. The 5 WP 5648.2011 - [ J ] impugned Judgment and order is quashed and set aside. The application for condonation of delay in filing the restoration application is allowed subject to payment of cost of Rs. 5,000/- ( Rupees Five Thousand only ) to be paid to the respondent no. 2. Mr. Soman, the learned counsel for the respondent no. 2 graciously submits that the said amount be directed to be paid to the High Court Advocates’ Bar Association Library, Aurangabad. The petitioner shall deposit an amount of Rs. 5,000/- ( Rupees Five Thousand only ) with the High Court Advocates’ Bar Association Library, Aurangabad within the period of two ( 2 ) weeks from today i.e. 12/09/2011. The appellate Court shall decide the restoration application as expeditiously as possible within the period of one ( 1 ) month from today. The parties agree to appear before the Co-operative Appellate Court on 12/09/2011. In case the Co-operative Appellate Court restores the Appeal, then the Appeal shall also be decided expeditiously. 10. Rule as such is made absolute in above terms. [ S.V. GANGAPURWALA, J.] KNP/WP 5648.2011 - [ J ] 6 WP 5648.2011 - [ J ]