IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7479 OF 2011 Shri Mallikarjun N. Bhoyare -- PETITIONER V/s. Karveer Nagar C.H.S., Ltd. -- RESPONDENTS Mr. Mallikarjun Bhoyare appeared in Person. Mr. D.B. Bhosale, Advocate for Respondent No.1. CORAM : G.S. GODBOLE, J. DATE : 17th NOVEMBER, 2011. P.C. : 1. Heard Mr.M.N. Bhoyare, appearing in person and Mr. D.W. Bhosale for Respondent No.1. In view of order Respondent No.2 is a formal party and hence need not be served. Rule. Rule made returnable forthwith. Mr. Bhosale waive service. By consent Petition taken up hearing . The Respondent No.1 filed a dispute U/s.91 of the M.C.S. Act, 1960 against the Petitioner in the Cooperative Court at Mumbai bearing case No.IV/386/2006. The Petitioner was appearing in person and he filed written statement. Thereafter, he remained absent hence no cross order was passed on 22nd June, 2009 and ultimately the dispute was decreed on 6th January, 2010, as the Petitioner was absent all through out he was not made aware of the decree passed in the dispute. When demand notice was issued on 5th January, 2011, the Petitioner learnt -----2/-- : 2 : about the award and almost immediately thereafter the appeal was filed on 27th January, 2011. In my opinion, since the Petitioner was not aware about the dispute, the reason for delay was plausible reason and there was sufficient explanation for the delay caused in filling the appeal. In my opinion the learned Judge of the Cooperative Appellate Court has not properly construed the application. The absence of the Petitioner before the trial Court during the course of trial was not a matter relevant for considering the application for condonation of delay and the relevant fact was whether the Petitioner factually had knowledge of the award passed against him. There is no material on record to show that the Petitioner had knowledge of the award prior to January, 2011. In my opinion, therefore, a sufficient ground for condonation of delay had been made out by the Petitioner. 2. Pursuant to an interim order passed in this Petition on 12/9/11, the Petitioner has deposited sum of Rs.1,01,256/-. I see no justification for retaining this amount in Court or not permitting the Respondent No.1 Society to withdraw this amount, subject to the final out come of the appeal which will now be numbered and heard on ----3/-- : 3 : merits on account of condonation of delay. Hence I pass following order. 3. The Writ Petition is allowed, impugned judgment and order dated 9th June, 2011 passed by learned Member of the Maharashtra State Cooperative Appellate Court, Mumbai in the Miscellaneous Application 10/2011 (Exh.D) is quashed and set aside. The application for condonation of delay filed by the Petitioner is allowed and the appeal filed by the Petitioner is directed to be registered and heard on its merits expeditiously and on or before 31st July, 2012. 4. Subject to the out come of the appeal, Respondent No.1 Society is permitted to withdraw the sum of Rs.1,01,256/- and interest, if any, which has accrued thereon. This will be subject to the final out come of the appeal. It is also directed that till disposal of the appeal, no further coercive steps will be taken against the Petitioner for recovery of the balance amount payable under the award. The advocate for the respondent states that statement of account of the Petitioner and copies of maintenance bills will be furnished to the Petitioner within four weeks. Statement accepted. Rule made absolute. No order as to costs. ( G.S. GODBOLE, J.)