1 7 caf.4959.08 ndm FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION CIVIL APPLICATION NO. 4959 OF 2008 IN FIRST APPEAL (stamp) NO. 19063 OF 2008 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions and Registrar’s orders Court’s or Judge’s orders Mrs. Shakuntala Joshi i/b Mr. V.B.Singh for the Applicants. Mr. R.B.Lote for the Respondent. CORAM : A.S.OKA, J. DATE : 14 th October, 2011. P.C. . Heard the learned counsel appearing for the parties. 2 The Respondent is the original plaintiff. He filed a summary suit in which the impugned decree has been passed. There is a delay of 1053 days. 3 The learned counsel appearing for the Respondent seeks time. The application is pending from the year 2008 and till today, no reply has been filed. 2 7 caf.4959.08 4 The submission of the learned counsel appearing for the Applicants is that during the pendency of the suit, a substantial amount was paid by the Applicants to the Respondent and notwithstanding the payment of the amount, the Respondent proceeded with the suit and has obtained a decree. Her submission is that only when the Applicants became aware of the decree, the appeal has been filed. 5 The learned counsel appearing for the Respondent disputes the contention that certain amounts were paid by the Applicants during the pendency of the suit. He submits that the Applicants had appeared in the suit and therefore, the contention that they were not aware of the decree cannot be accepted. 6 I have carefully considered the submissions. Whether the Applicants had paid any amount as contended by them is a matter relating to the merits of the decree. In the application, it is averred that the Applicants were under the impression that after certain payments were made, the Respondent would 3 7 caf.4959.08 withdraw the suit. There is a specific assertion that the Applicants became aware of the impugned decree for the first time on 6 th June, 2008. The appeal alongwith the application for condonation of delay appears to have been filed on 4 th August, 2008. There is no reply filed disputing the aforesaid factual statements. Therefore, a case is made out for condonation of delay subject to Applicants paying costs to the Respondent quantified at Rs.7,500/-. 7 It is made clear that, at this stage, this Court has not made any adjudication as regards the case made out by the Applicants regarding payment of certain amounts to the Respondent during the pendency of the suit. 8 Hence, rule is made absolute in terms of prayer clause (a) subject to condition of the Applicants directly paying costs of Rs.7,500/- to the Respondent within a period of six weeks from today. Payment of costs shall be condition precedent. [ A.S.OKA, J ]