1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Writ Petition No. 239/2011 (Smt. Radhabai R. Warthi & others VERSUS Yogeshchandra D. Paliwal & others) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri S.A. Kalbande, counsel for the petitioners. Shri S.S. Joshi, counsel for the R-1. Shri K.L. Dharmadhikari, A.G.P. for the R-3. CORAM : SMT. VASANTI A. NAIK, J. DATE : APRIL 26 , 2011 . Heard. By this petition, the petitioners impugn the judgment passed by the Commissioner under the Workmen’s Compensation Act, Nagpur on 25.11.2010 allowing the application filed by the respondent no.1 for condonation of delay in filing the application for setting aside the exparte order dated 30.10.2004 allowing the application filed by the petitioners under the provisions of the Workmen’s Compensation Act. It appears that an award was passed in favour of the petitioners in W.C.A. No.66 of 2002 on 30.10.2004. It was an exparte award as the respondent no.1 had not participated in the proceedings. It was the case of the respondent no.1 before the Commissioner that he had received the notice of the award passed by the Commissioner on 23.04.2005 and he immediately applied for the certified copy of the award. Thereafter, it is stated in the application for condonation of delay that the respondent no.1 procured 2 and verified the records of the case to find that a person, who was not authorized by the respondent no.1 to appear on his behalf had moved an application before the Commissioner in the Workmen’s Compensation case for grant of time to file the written statement. It was the case of the respondent no.1 in the application for condonation of delay as well as for setting aside the exparte award that he had never received the notice in the Workmen’s Compensation case at any point of time. The respondent no.1 pleaded that he had a good case on merits and in the facts and circumstances of the case, since the cause for belatedly filing the application was bona fide, the application for condonation of delay in filing the application for setting aside the award may be allowed. Though the application was strongly opposed by the petitioners, the Commissioner by the impugned order dated 25.11.2010 allowed the application for condonation of delay subject to payment of costs of Rupees Five Thousand. On hearing the learned counsel for the parties and on perusal of the impugned order, it appears that the Commissioner was justified in allowing the application for condonation of delay as the Commissioner found that the respondent no.1 had disputed his very appearance in the Workmen’s Compensation case. The Commissioner considered the fact that though the judgment was passed on 30.10.2004, the respondent no.1 became aware of it only on 23.04.2005 and then after collecting the necessary documents and making enquiries in the matter, filed the application for condonation of delay in July-2005. 3 Since the learned counsel for the petitioners stated that the petitioners were apprehensive that the respondent no.1 was desirous of protracting the matter with a view of not depositing the amount payable under the award, this Court asked the counsel for the respondent no.1 to take instructions from the respondent no.1 as to what amount, the respondent no.1 would be able to deposit before the Commissioner during the pendency of the proceedings. Shri Joshi, the learned counsel for the respondent no.1, on instructions from the respondent no.1, states that the respondent no.1 would be in a position to deposit an amount of Rupees Two Lacs within a period of Six Weeks from the date of this order. Hence, in the facts and circumstances of the case, the writ petition is disposed of but, with a direction to the respondent no.1 to deposit an amount of Rupees Two Lacs before the Commissioner under the Workmen’s Compensation Act, Nagpur within a period of Six Weeks from the date of this order. The petitioners would, however, not be entitled to withdraw the said amount till the matter is decided by the Commissioner, on merits. In case, the costs of Rupees Five Thousand are not deposited by the respondent no.1, the respondent no.1 should immediately deposit the same before the trial Court within a period of two weeks from the date of this order. No order as to costs. JUDGE APTE