1 MNM IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.5538 OF 2009 Shashikant B. Kamble & Ors. ...Petitioners Vs. The Bharat Co-operative Bank Ltd. ...Respondents Mr.S.K.Shinde i/b. Mr. Sagar Kasar, Advocate for the Petitioners Mr.Prakash Mulky i/b. Gopal C. Poojary & Co. Advocate for the Respondents CORAM : SMT.ROSHAN DALVI, J. DATED : 20TH JANUARY, 2010 P.C. : 1. Heard both sides. 2. Rule. Rule made returnable forthwith. 3. The impugned orders relate to refusal of condonation of delay in filing an application for setting aside the Ex-parte Award passed by the Co-operative Court on 29 th February 2008. 2 4. The application has been filed since 10 th October 2008. The delay was of 193 days. The case for condonation of delay was that in view of the Writ Petition filed concerning the Bank’s powers under Multi State Co-operative Bank, the dispute was adjourned sine die. After the decision was rendered the Dispute was taken on board for hearing. At that time no notice was issued upon the Petitioners. They did not know of the Award passed. Hence, the application. 5. Their case is that the case has been adjourned sine die and is reflected in the noting dated 24 th October 2002 of the learned Co-operative Court, Mumbai. Though a date is mentioned against the noting it shows that the case was adjourned sine die. The fact remains that the substance of the noting shows that it was indeed adjourned sine die. 6. It would have been prudent for the Bank to issue notice upon the Petitioners when the dispute reached hearing. The Petitioners were not represented by Advocates. Hence no Advocate could appear or be informed. Consequently, the duty of the Court as well as the Disputant would be doubled. The fact remains that an Ex-parte decree was passed which is open to challenge. The challenge is not seen to be completely devoid of merits. The Petitioners would be required to be heard on merits. 7. The cause shown is justifiable. Hence both the orders of the Co-operative Court and the Co-operative Appellate Court which refused to condone the delay are required to be interfered with. Both the orders are set aside. The dispute shall be heard on merits. 3 8. The Petitioners shall forthwith file their written statement, give inspection of the documents, produce copies of their documents and get themselves ready for trial. 9. Rule is made absolute accordingly. (SMT.ROSHAN DALVI, J.)