IN THE HIGH COURT OF BOMBAY AT GOA MISC.CIVIL APPLICATION NO. 211 OF 2009 IN STAMP NUMBER MAIN NO. 60 OF 2009 M/S. SHREE SAGAR STEVEDORES AND 2 ORS., ... Applicants Versus M/S. SHRI. KAUSTUB SHIPPING PVT LTD ... Respondent Mr. J. E. Coelho Pereira, Senior Advocate with Mr. S. Karpe, Advocate for the applicants. Mr. S. Singbal, Advocate for the respondents. Coram:- B. P. DHARMADHIKARI & U. D. SALVI, JJ. Date:- 17th June, 2009 P.C. The prayer in M.C.A. is to condone the delay of 421 days in filing First Appeal on the ground that the appellants who are residing at Gujarat got knowledge of the impugned judgment and decree only after the notice in Execution proceedings was received by them. It is contended that after the said notice, an advocate was engaged and an application was moved for obtaining necessary certified copy. It is further contended that the original defendant no.3, the father of the present appellant no.2 was a cancer patient and was required to be hospitalised and because of his serious health, the original defendant no.2 (appellant no.2) could not pay necessary attention to the Court cases. It is further alleged that one Shreyas Thakkar, Manager who was looking after the day to day affairs left the firm in January, 2007 and thereafter two more Managers were engaged and again after some gap the said Shreyas Thakkar has joined back. It is further pointed out that 24.07.2006 was the date fixed for recording of evidence of the defendants and Shreyas Thakkar, because he was suffering from jaundice could not attend earlier. However on 24.07.2006, he was present but he came 15 minutes after the order to proceed further was passed. Handwritten application was immediately moved for recalling that order and for permitting the defendants to participate in the trial on merits. The learned Senior Advocate has contended that there are no malafides and hence the delay deserves to be condoned. 2. He further points out that the ailing father of the defendant no.2 expired in July 2008. By way of abundant precaution, learned Advocate states that the applicants are ready and willing to show the bonafides by depositing the decreetal amount in the Trial Court. He points out that the issue of territorial jurisdiction has been raised before the Trial Court and according to him the same has been erroneously decided. A suit has been filed before the Bhavnagar Court in the State of Gujarat by applicants against respondents in same matter and it is pending. 3. Learned Advocate for the respondents has strongly opposed the prayers for condonation of delay. He points out that the inception of the story itself is based upon falsehood. According to him, Shreyas Thakkar was not suffering from jaundice and he invites attention to the muster roll of the appellant no.1 for the month of June, 2006 to show that Shreyas Thakkar has been shown present on almost all days in June, 2006. It is his contention that the matter was deliberately delayed and there are no bonafides in the matter. 4. In view of the arguments advanced by learned Senior Advocate and the offer made by him to deposit the entire amount coupled with the death of the father of the defendant no.2, though we find in the handwritten application moved by them, prima facie, statement of illness of Shreyas is incorrect, the fact that had Shreyas Thakkar appeared in time on the said day, the Trial Court would have recorded his evidence and the matter would have proceeded further on merits, cannot be over looked. In view of this position, we permit the applicants to deposit the entire decretal amount by 13.07.2009 before the Trial Court. If such amount is deposited, the Trial Court shall invest the same in any Nationalised Bank initially for a period of six months. 5. In view of this deposit, the learned Advocate for the respondents states that the respondents do not have any objection, if the impugned judgment and decree is set aside by condoning the delay and the proceedings be restored to stage at which they were pending on 03.07.2006, so as to enable the present applicants to defend themselves on merits before the Trial Court. 6. In view of the consent given, we condone the delay in filing the First Appeal. M.C.A. disposed off. Office to register the First Appeal. B. P. DHARMADHIKARI, J. U. D. SALVI, J. lh/.