-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No.8919 of 2005 1. Dwarkaprasad Hariharprasad Tiwari and another ..Petitioners vs. 1.Shree Samartha Sahakari Bank Ltd. and another ..Respondents Shri Kishor Patil i/b Shri P.N.Joshi for petitioners. Shri F.P.Frederick for respondent no.1. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. 28th February, 2008 28th February, 2008 28th February, 2008 P.C. P.C. P.C. 1. The petitioners are original opponent nos. 2 and 3 to the dispute (case No.ABN/1468/02) which has been instituted by the original disputant/respondent no.1 before me. 2. On 10th March, 2004, the said dispute has been allowed. The petitioners before me have been held liable jointly and severally to pay a sum of Rs.6,87,080/-to the first respondent with further interest as directed therein. 3. They preferred an appeal before the Maharashtra State Cooperative Appellate Court which was barred by 11 months and 7 days. The -2- application for condonation of delay was made which has been rejected. The reason assigned is that the petitioners were aware of the proceedings and, therefore, they could not be said to be prevented by sufficient cause from approaching the Cooperative Appellate Court. The application of the petitioners specifically stated that respondent no.2 was borrower and they were under the impression that he would settle the entire dispute. Further, award was exparte and after they became aware of the same, they immediately moved and filed the appeal. 4. The learned Judge should have taken a lenient view of the matter in as much as the delay has occurred not on account of complete inaction or lack of bonafides. Merely because the petitioners have failed to appear before the Trial Court and file their written statement they were duly served with the suit summons does not mean that the appeal cannot be entertained. Similarly, merely for that reason the delay should not be condoned cannot be a conclusion. In the peculiar facts of this case and when the petitioners are ready and willing to compensate the first respondent for delay, the application should have been granted. Accordingly, delay is -3- condoned. Misc. Application is allowed subject to the petitioners paying costs quantified at Rs.5000/- to the first respondent within a period of two weeks from today. If the costs are paid and proof is produced lower Appellate Court to register the appeal and hear it in accordance with law. Petition is disposed of. (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.)