1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.2866 OF 2009 1. Rajendra Champalal Muttha Age : 50 years, Occ : Business, 2. Jitendra Vasantrao Gugale Age : 38 years, Occ : Business, 3. Baburao Gulabrao Shelke Age : 55 years, Occ : Business, 4. Bhagwan Malhari Bangar Age : 60 years, Occ : Agri., 5. Suresh Narayanrao Avhad Age : 60 years, Occ : Business, 6. Roshan Babulal Sharma Age : 55 years, Occ : Business, 7. Vilas Vishnupant Rodi Age : 65 years, Occ : Business, 8. Shailaja Sanjay Kulkarni Age : 45 years, Occ : Business, 9. Surekha Ramesh Gore Age : 40 years, Occ : Business, All R/o Pathardi, Taluka Pathardi, District Ahmednagar. ..Petitioners -VERSUS- 1. The Ahmednagar District Jillha Madhywarti Sahakari Bank Ltd., Ahmednagar Through it's Executive Director, Sudhakar Wamanrao Sherkar, Age : Major, Occ : Service, R/o Station Road, Ahmednagar, District Ahmednagar. 2 2. Lokmangal Urban Co-operative Credit Society Ltd., Pathardi, Taluka Pathardi, District Ahmednagar Through its Liquidator, Murlidhar Pandurang Kharmate 3. Bharat Motiram Pardeshi 4. Arjung Rameshwar Athawal (Deleted as per Court's order dated 13th November, 2009.) Nos.3 and 4 both Age : Major, Occ : Business, R/o Pathardi, Taluka Pathardi, District Ahmedangar. ..Respondents ......... Mr.S.S. Jadhavar, Advocate for petitioners. Mr.C.K. Shinde, Advocate for respondent nos.1 and 2. Mr.A.N. Kakade, Advocate for respondent no.3. ........ (CORAM : R.K. DESHPANDE,J.) DATE : 15th June, 2010. ORAL JUDGMENT : 1. This Writ Petition challenges the order dated 24.03.2009 passed by the learned Incharge Member of the Maharashtra State Co-operative Appellate Court, Mumbai, Bench at Aurangabad, in Misc. Application No.90/2008. The learned Member of the Appellate Court has rejected the application filed by the present petitioners for condonation of delay of 270 days caused in filing appeal. 2. Notice in this matter was issued on 6.5.2009. In 3 response to the said notice, Shri.C.K. Shinde, learned counsel appears for respondent nos.1 and 2 whereas, Shri.A.N. Kakade, learned counsel appears for respondent no.3. 3. The learned counsel for the parties agree that the matter can be disposed of finally at the stage of admission. Hence, Rule, made returnable forthwith. The learned counsel for respective parties waive service of notice. 4. The Appellate Court has held by the impugned order that no sufficient cause was made out for condonation of 270 days delay caused in filing the appeal. The reason put forth by the petitioners is that they were under bonafide impression that in absence of permission under Section 107 of the Maharashtra Co- operative Societies Act, no decree shall be passed by the Co- operative Court against them. However, the decree has been passed by the Co-operative Court on 20th December, 2007 in Dispute No.188/1999. They came to know this in October, 2008 and hence after obtaining certified copy on 24.10.2008, approached the Appellate Court with an application for condonation of delay of 270 days. This explanation put forth by the petitioners has been disbelieved by the Appellate Court. 4 5. It is not in dispute that the decree passed by the Co- operative Court is for an amount of Rs.42,77,670.67 paise along with interest at the rate of 17% p.a. and penal interest at the rate of 2% p.a. The petitioners are held jointly and severally liable to pay the decreetal amount. In this background, there is no reason to disbelieve the version of the petitioners that they were under bonafide impression that no decree would be passed by the Co- operative Court without obtaining the permission under Section 107 of the Maharashtra Co-operative Societies Act. It is a fact that permission under Section 107 was obtained and hence, the Trial Court proceeded to decide the matter. The version of the petitioners that they have acted on the basis of the advise given by the counsel also can not be disbelieved, as it is highly incomprehensible that persons would sit tight over the matter intentionally, when the decree of an amount of Rs.42,77,670.67 paise has been passed against them. The Appellate Court, in my view, was therefore not right in rejecting the application for condonation of delay. The exercise of jurisdiction by the Appellate Court while dealing with the application for condonation of delay was with material irregularity, resulting into failure of justice. Hence, the matter needs interference. 6. After going through the contents of the application for 5 condonation of delay and after hearing the counsel for the respective parties, it is apparent that sufficient cause was made out for condonation of delay and hence, the application filed by the petitioners needs to be allowed. However, the same shall be subject to costs. 7. In the result, instant petition succeeds. Impugned order dated 24th March, 2009 passed by the learned Incharge Member of the Maharashtra State Co-operative Appellate Court, Mumbai Bench at Aurangabad rejecting the Misc. Application No. 90/2008 is hereby quashed and set aside and Misc.Application No. 90/2008 is allowed. The delay of 270 days caused in filing appeal is condoned subject to petitioners altogether, paying total cost of Rs.10,000/- to the respondent no.1 within four weeks from today. The appellate Court shall now proceed to decide case on merits. Rule made absolute in the above terms. No order as to costs in this petition. (R.K. DESHPANDE) JUDGE gas/wp2866.09