kbp 1 7657-09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7657 OF 2009 Rupee Co-operative Bank Ltd. ..Petitioners Vs. Shriram Narayan Shastri ..Respondent ......... Mr.K.V.Tembe, for petitioners. Ms.Manjiri Parasnis, for respondent. ......... CORAM : A.S.OKA, J.. DATE : 15 th OCTOBER, 2009. P.C. : 1] On 12th October, 2009, the petition was taken up for final disposal. By this writ petition under Article 227 of the Constitution of India, the petitioner Bank has challenged the order dated 18 th July, 2009 passed by the trial Court by which an application made by the petitioner bank for taking written statement on record has been rejected. 2] The respondent filed a suit for recovery of a sum Rs.9,05,412/- against the petitioner. The trial Court passed order on 3 rd March, 2009 directing that the suit shall proceed without written statement of the petitioner. On 28 th April, 2009, an application was made by the petitioner for setting aside the said order. The said application exhibit 17 has been rejected by the impugned order. 3] Learned Counsel for the petitioner pointed out that the summons was kbp 2 7657-09.sxw served on 16 th January, 2009 and the application at Exhibit 17 has been filed on 28 th April, 2009. He pointed out that cogent and sufficient reasons were set out in the said application as to why written statement could not be filed earlier and even otherwise, there is a delay of only eight days. Learned counsel for the respondent invited my attention to the Roznama of relevant dates and pointed out that the petitioner made applications for grant of time to file written statement on three occasions and the Court granted time on the basis of the said applications. It is pointed out that the last application made by the petitioner on 12 th March, 2009 was rejected. It is pointed out that an affidavit in lieu of examination-in-chief was already filed. She has placed reliance on various decisions (1)Kailas Vs.Nanhku and ors. [2004(2) All Rent Case 779], (2) Salem Bar Association Tamil Nad Vs. Union of India [AIR 2005 SC 3553], (3) M/s.R.N.Jadi and Brothers & Ors. Vs.Subhashchandra [2007 (3) CCC 201(SC)], (4) M/s.Aditya Hotels (P) Ltd. Vs.Bombay Swadeshi Stores Ltd and ors. [AIR 2007 SC 15741], (5) Shbri Pandurang alias Shashi Dessai Vs. Kum.Beraldin Tavaeres [W.P. No.391 of 2003] Lastly, a reliance was placed on judgment and order dated 10 th September, 2008 passed by this Court in Writ Petition No.3763 of 2008. Learned counsel for the respondent submitted that in view of the settled law, unless there are exceptional circumstance, time to file written statement cannot be extended and in this case there are no exceptional circumstances. 4] I have given careful consideration to the submissions. The suit summons kbp 3 7657-09.sxw was served on 16 th January, 2009 and the petitioner entered appearance through an advocate on 20 th January, 2009. It is true that on three occasions time was granted to the petitioner to file written statement. In the application exhibit 17 made by the petitioner, it is stated that the respondent had filed a case in the Co- Operative Court against the petitioner. Against the order passed in the said case, the petitioner preferred an appeal. The said appeal was dismissed, and therefore, the petitioner filed a writ petition in this court and all relevant documents and the case papers were handed over to an advocate filing writ petition. The name of the advocate to whom papers were handed over is disclosed in paragraph 2 of the application. It is specifically stated that considering the controversy involved in the writ petition, the papers relating to the present suit were also entrusted to the advocate. It is said that persistent efforts were made to get back the documents from the said Advocatge. It is stated that the papers were returned by the said advocate only in the week in which said application was filed. The present application for taking written statement on record is filed on 28 th April, 2009. Thus, there is delay of only few days. The averments made in the application are very specific and all particulars are set out including the name of advocate. The application was filed in the same week in which the papers were handed over by the concerned advocate. It is not possible to disbelieve what is stated in paragraph 2 of the application. The application itself sets out exceptional reasons as to why there was delay a about kbp 4 7657-09.sxw 8 to 9 days in filing written statement. Therefore, the learned Judge has committed an error. The reliance placed on the decisions of this Court in Writ Petition No3763 of 2008 as well as Writ Petition No.391 of 2003 will not help the respondent as the said decisions were rendered in the facts of the case before this Court. 5] In the circumstances the petition must succeed and I pass the following order:- (a) The impugned order dated 18 th July, 2009 is quashed and set aside and the application exhibit 17 is hereby allowed. (b) Writ Petition is allowed in the above terms with no order as to the costs. ( A.S.OKA, J. )