1 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.8924 OF 2009 M/s.Lalit Nirman Business Development Pvt.Ltd. & Anr. ...Petitioners vs. Lata Baburao Aher and Ors. ...Respondents Mr.V.R.Kasle i/b M/s.Ram and Co. for the petitioners Mr.Girish Agrawal for respondent nos.1 to 3 CORAM :A.S.OKA,J. DATE : APRIL 8, 2010 P.C.: 1 Notice for final disposal was issued on 5 th January 2010. 2 This petition under Article 227 of the Constitution of India is filed by the defendant nos.1a, 1-b and 2. The respondents are original plaintiffs. The suit is filed for declaration and injunction. The declaration claimed is that the development agreement and power of attorney are not binding on the respondents. An application was made by the petitioners at Exhibit-33 praying for setting aside the order to proceed with the suit without written statement and for extension of time to file the written statement. By the impugned order, the said application has been rejected. 3 The learned counsel for the petitioners invited my attention to the averments made in the application at Exhibit-33. He pointed out the specific averment has been made that from time to time parties met and in presence of respectable persons, there were talks of settlement. 2 It is alleged that considering the proximity between the second defendant and the plaintiffs, the petitioners carried an impression that the dispute may be settled as agreed and therefore, written statement was not filed. He submitted that in view of the assertions in the application, extraordinary circumstances were brought on record and the Court ought to have exercised discretion by permitting the petitioners to file their written statement. The learned counsel for the respondents invited my attention to the impugned order. He pointed out that the applications for adjournment made by the petitioners were rejected long back in the year 2007. He pointed out that at no stage, any ground was set out by the petitioners in the applications for adjournment that there were any talks of settlement. He submitted that only in a case where extraordinary circumstances/ reasons are established that the Court can extend the time in view of mandate Rule 1 of Order VIII of the Code of Civil Procedure,1908. He submitted that this is a case where ground made out in the application at Exhibit-33 is totally false. 4 I have given careful consideration to the submissions. The trial Court has noted that the applications were made by the petitioners for grant of time to file written statement. The applications were made in the time span between 5 th July 2007 to 16 th September 2008. Even after no written statement order was passed, an application for extension of time to file written statement was made which was rejected. What is stated in the application at Exhibit-33 is that there was a close contact between the 2 nd defendant and the plaintiffs and therefore, the petitioners relied upon the assurance given by the plaintiffs that the dispute will be settled. The application was made for seeking 3 permission for filing the written statement as well as a Counter-Claim. Even assuming that no case is made out for permitting the written statement to be filed, the petitioners can always file a separate suit incorporating the prayers made in the Counter-Claim and if such a separate suit is filed, naturally, the present suit and the separate suit will have to heard together which will delay the present suit filed by the respondents. Considering the peculiar facts, this was a case where existence of extraordinary circumstances was established by the petitioners in the application at Exhibit-33. Therefore, permission deserves to be granted to the petitioners to file written statement and Counter-Claim. Considering the length of the delay, the petitioners will have to pay substantial amount by way of costs. The amount of costs deserves to be fixed at Rs.25,000/- out of which a sum of Rs.15,000/- has been already deposited by the petitioners. 5 Hence, petition is disposed of by passing the following order : i) Impugned order passed below at Exhibit-33 is quashed and set aside and the application at Exhibit-33 is allowed subject to the petitioners paying costs of Rs.25,000/- to the original plaintiffs. A sum of Rs. 15,000/- is already deposited by the petitioners in this Court. The respondents-original plaintiffs will be entitled to withdraw the said amount. Time of ten weeks is granted to the petitioners deposit balance amount of Rs.10,000/-. ii)Written statement and Counter-Claim shall be taken on record only if compliance is made by paying or depositing further amount of Rs.10,000/- within stipulated time. It is obvious that the trial Court 4 will permit the original plaintiffs to file written statement to the Counter-Claim. iii)Hearing of the suit is expedited and the trial Court is directed to conclude the hearing of the suit and the Counter-Claim by the end of year 2010. iv)It is made clear that the amount of Rs.10,000/- shall be either paid to the plaintiffs or deposited in this Court. v) Writ petition is allowed in above terms. JUDGE