1 WP-9182-10.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9182 OF 2010 Gangadhar Vishnu Phakatkar ..Petitioner Vs The Haveli Taluka Onion Growers Co-op. Kharedi Vikri Sangh Mt. ..Respondents -- Mr.P.S.Dani, for petitioner. Mr.V.D.Patil, for respondent. -- CORAM : R.G.KETKAR, J. DATE : 26 th AUGUST, 2011 P.C: Heard Mr.P.S.Dani, learned counsel for the petitioner and Mr.V.D.Patil, learned counsel for the respondent. 2] Rule. Mr.Patil waives service. By consent of the parties, Rule is made returnable forthwith and is heard finally. 3] By this petition, the petitioner challenges judgment and order 2 WP-9182-10.odt dated 28 th September, 2010 passed by the learned Member, Maharashtra State Co-operative Appellate Court, Mumbai, Bench at Nagpur, Camp at Pune. By that judgment, the learned Member allowed the application of the petitioner and condoned the delay in preferring appeal subject to costs of Rs.3,000/- to be paid within two weeks from the date of the order failing which, the order of the trial Court would stand confirmed. 4] The learned counsel for the parties agree that the learned Member, in effect, directed the petitioner to deposit 30% of the amount payable by him as on the date of the order which includes 30% of the interest component as well and, on the failure of the petitioner to deposit the amount, the stay granted by the Appellate Court would stand vacated automatically without reference to the Court. The learned Member further ordered that on failure of the petitioner to comply with the order, the appeal shall stand dismissed. 5] Mr.Dani submits that the stay was granted on condition of the petitioner depositing 30% of the amount payable by the petitioner. The learned Member committed error in ordering that on failure to 3 WP-9182-10.odt deposit the amount, the appeal shall stand dismissed. Mr.Dani submitted that the learned Member should have ordered vacation of the stay on failure of the petitioner depositing the amount and the learned Member ought not have ordered dismissal of the appeal on failure of the petitioner to deposit the amount. I find substance in this submission. 6] On the other hand, Mr.Patil submitted that no interference is called for at the hands of this Court and the condition imposed for granting stay is reasonable. I find substance in the submission of Mr.Patil that the condition of depositing 30% of the amount payable by the petitioner, for granting stay is reasonable. At the same time, the learned Member committed error in ordering that on failure of petitioner to comply with the order, the appeal would stand dismissed. The impugned order, therefore, requires to be modified. 7] Mr.Dani states that pursuant to the impugned order, the petitioner has paid costs of Rs.3,000/-. He further states that the petitioner will deposit in the Co-operative Appellate Court, 30% of the amount payable by him i.e.30% of Rs.5,91,286/- + interest part as 4 WP-9182-10.odt awarded by the trial Court within eight weeks from today. Mr.Patil states that upon the petitioner depositing the amount, liberty may be granted to the respondent to apply in the Co-operative Appellate Court for withdrawal of the said amount. 8] In view of this, the impugned order dated 28 th September, 2010 is modified and the petition is disposed of in the following terms :- (i) The petitioner is granted eight weeks time to deposit in the Co- operative Appellate Court, 30% of the amount of Rs.5,91,286/- + interest part as awarded by the trial Court. (ii) On the condition of the petitioner’s depositing aforesaid amount with the Co-operative Appellate Court with due intimation to the respondent, the stay granted by the Co-operative Appellate Court shall stand confirmed. It is made clear that in the event of petitioner’s failure to deposit the amount within the stipulated time, the stay granted by the Co-operative Court shall stand vacated without further reference to the Court. 5 WP-9182-10.odt (iii) The respondent is at liberty to apply to the Co-operative Appellate Court for withdrawal of the said amount. (iv) The impugned order stands modified in the aforesaid terms. Rule is made absolute accordingly, with no order as to costs. [R.G.KETKAR, J.]