1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1734 OF 2009 M. D. Pawar Peoples Co-op. Bank Ltd. ..Petitioner versus Yuvraj S. Jadhav & Ors. ..Respondents Mr. U. B. Nighot for Petitioner. Ms. M. S. Parasnis for Respondent No. 1. CORAM : SMT. NISHITA MHATRE, J. DATED : 3RD JULY, 2009. P.C. : 1. The petitioner is a Co-operative Bank and is aggrieved by the Order passed by the Co-operative Appellate Court, Pune. By the impugned order the Co-operative Appellate Court has refused to condone the delay of 612 days in filing the appeal by the petitioner. The Co-operative Appellate Court has found that the explanation given by the petitioner for the delay was insufficient and therefore has refused to condone the delay and entertain the appeal. 2. It is submitted on behalf of the petitioner that being a small Co- 2 operative Bank it was not possible to obtain instructions and take a decision in the matter immediately. It is further contended that the Respondent No. 1 had approached the bank for settlement of the dues and therefore the bank had not initiated the appeal proceedings. 3. The respondent No. 1 had borrowed the loan on 20th November 1996 from the petitioner bank. According to the petitioner, the Respondent No. 1 had failed to return and repay the loan and hence it filed a Dispute on 1st August 2001. It appears that on 18th May 2006. The Dispute was dismissed by the trial court as the petitioner was unable to prove that it had advanced a loan to the respondent No. 1 - the principal borrower. It appears that thereafter the petitioner bank applied for a certified copy of the judgment of the trial court, which was received by them on 8th February, 2007. It is contended in the application for condonation of delay that the Advocate appearing for the petitioner bank had not informed it that the Dispute was dismissed on 15th May 2006. The application does not contain any explanation for the delay in filing the appeal on 17th March 2008 when a copy of the Judgment was received on 8th February 2007. However, an affidavit has been filed in this Court by a Junior Officer of the petitioner bank in which he has stated that the reason for not filing an appeal from February 2007 to 17th March 2008 was that the respondent No. 1 had approached the bank to settle his dispute amicably as the amount involved 3 was small. The bank thought it fit to settle the dispute rather than engage in litigation and therefore had not filed an appeal. 4. Mr. Nighot appearing for the bank submits that public money is involved in the present case and therefore the Co-operative Appellate Court ought to have condoned the delay. He submits that there is a sufficient explanation given by the bank for not filing an appeal within the period of limitation. According to the learned Advocate since the petitioner is a small Co-operative Bank, the rigour of the Law of Limitation should not apply in all its severity. He relies on Judgments of the Supreme Court in the case of G. Ramegowda Major v. The Special Land Acquisition Officer, Bangalore [AIR 1988 S.C. 897] and in the case of N. Balakrishnan v. M. Krishnamurthy [(1998) 7 SCC 123]. In both these judgments, the Supreme Court has expressed the view that the standards which are to be applied when condoning the delay caused by Government Agencies in filing litigation must not be the same as are to be applied to private parties. 5. On the other hand, the learned Advocate for the Respondent No. 1 submits that there is no explanation whatsoever in the application for condoning the delay filed before the Co-operative Appellate Court and therefore the Co-operative Appellate Court has rightly refused to condone the delay of 612 days. She submits that the explanation given today by way 4 of the affidavit filed of the Junior Officer, cannot in any way change the situation for the petitioner bank as this explanation was not available to the Co-operative Appellate Court when it rejected the application of the petitioner bank. She further submits that no exception can be made for Government or Co-operative Banks when considering the question of delay. She points out the Judgment of the learned Single Judge of this Court (Lodha, J. as he then was) being Laxman N. Divekar v. State of Maharashtra [AIR 1988 Bombay 176] in which it has been held that the Law of Limitation applies equally to all litigants. While doing so the learned Judge has considered the Judgment of the Supreme Court in the case of G. Ramegowda Major (Supra). She further points out that in the case of Union of India & Ors. vs. Vidarbha Venaer Industries [1994 Supp. (2) SCC 696] the Supreme Court has held that a mere statement that the relevant file was lost in some office was not sufficient cause for condoning the delay unless action had been taken to identify the person responsible and action had been taken against that person. 6. It is no doubt true that in the application for condoning the delay there is no explanation for the delay caused from the date of receipt of the certified copy of the Judgment till the application was filed for condoning the delay i.e. from 8th February 2007 to 17th March 2008. However, in the affidavit filed by the petitioner bank there is some explanation given. This 5 explanation was not available to the Appellate Court while deciding the matter. Therefore, in my opinion, and in the interest of justice it would be appropriate to remand the matter to the Co-operative Appellate Court. The Co-operative Appellate Court will consider the explanation given in the affidavit filed by Shantaram Dadu Mote dated 23rd June, 2009 in this court, as also the explanation in the application for condoning the delay and consider once again whether the delay should be condoned. 7. While doing so, the Co-operative Appellate Court will decide the application uninfluenced by its earlier Order dated 24th April, 2008. The Co-operative Appellate Court will also consider the aforesaid Judgments and any other Judgments which the parties may rely on while deciding the application. The Co-operative Appellate Court will also bear in mind that the petitioner is a Co-operative Bank where public money is invested. Parties are directed to appear before the Co-operative Appellate Court on 20th July, 2009 at 11.00 a.m. 8. Petition disposed of accordingly. (SMT. NISHITA MHATRE, J.) 6