HONOURABLE SRI JUSTICE P.S.NARAYANA Dated 2-2-2010 WRIT PETITON No.25807 OF 2009 Between: The K.Gokavaram Primary Agriculture Co-operative Society, represented by its Secrtary Minda Agasteen. …Petitioner. And: Haripalem Milk Producers Mutually Aided Co-operative Society, represented by its President, Marisetty Suri Appa Rao and others. .Respondents. HONOURABLE SRI JUSTICE P.S.NARAYANA WRIT PETITON No.25807 OF 2009 ORDER: This Court ordered notice before admission on 27-11- 2009 and granted interim stay for a limited period which is being extended from time to time. The 2nd respondent filed W.V.M.P.No.4455 of 2009 to vacate he interim order. When the Vacate Stay application is being heard, the counsel on record Sri T.Rajendra Prasad, learned counsel representing the writ petitioner and Smt. Bobba Vijayalakshmi counsel representing the respondents made a request for final disposal of the wit petition. Hence, the writ petition itself is being disposed of finally. Sri T.Rajendra Prasad, learned counsel representing the writ petitioner has taken this Court to the contents of the affidavit filed in support of the writ petition and would maintain that for want of knowledge, the matter could not be pursued and hence, since the delay has been explained properly and an opportunity may be given to the petitioner. Per contra, Smt. Bobba Vijayalakshmi, learned counsel representing the respondents has taken this Court through the contents of the counter-affidavit and would maintain that in the facts and circumstances, especially, in the light of the inordinate delay nor being explained by sufficient cause whatsoever, order under challenge cannot be postponed and hence, this writ petition is devoid of merits and this W.P.M.P. is dismissed. Heard the learned counsel. This Writ Petition is filed seeking to issue an appropriate writ, order or direction more particularly one in the nature of writ of mandamus declaring the order dated 11-9-2009 in M.P.No.11 of 2009 in S.R.No.2131 of 2004 on the file of the A.P. Co-operative Tribunal, Vijayawada as illegal, arbitrary, unjust and set aside the same and condone the delay of 1035 days and to restore the order dated 20-1-2005 and permit the petitioner to participate in the hearing. It is the case of the petitioner that the petitioner filed an appeal before A.P. Co-Operative Tribunal, Vijayawada made by the 1st respondent in M.A.No.1 of 2009 with an application to condone the delay and as the matter was posted for hearing on 20-1-2005, on that day, the counsel of the petitioner had not attended before the Tribunal due to ill-health and he had undergone treatment on that day, the Tribunal dismissed the petition for default. The said fact came to the notice of the writ petitioner in the last week of December, 2008 and immediately, an application was filed to restore the appeal with the application to condone the delay of 1035 days and R.1 and R.3 had not filed any counter raising any objection and only R.2 alone filed the counter. Specific stand has been taken that due to the lack of knowledge, the application was moved with delay. Thus, the delay is neither willful nor wanton. The same ground had been elaborately averred in paragraphs 3 and 4 of the affidavit filed in support of the Writ Petition. In the Counter affidavit filed by the 2nd respondent, it is stated that it is true that the petitioner filed O.A.S.R. No.2131 of 2004 challenging the orders of the 1st respondent under Section 62 of the A.P. Co-operative Societies Act in claim No.206/2002-2003 dated 24- 5-2004 directing the petitioner-society to pay an amount of Rs.1,06,130/- with interest at 6% p.a., from 22-9-2003 till the date of realization towards cost of 334 bags of Seed supply. The said O.A. was dismissed for non-prosecution on 20-1-2005. The petitioner filed M.A.No.5 of 2009 to condone delay in filing the Restoration Petition with a delay of 1035 days. The respondents 1 and 3 had not filed counter while this respondent had filed counter. It is stated that the Tribunal has rightly dismissed the said application the on the ground that there is no proper explanation for the delay and same was not supported by any evidence. The reason for non-prosecution was not supported by any evidence either documentary or orally by examining the concerned doctor who treated him. It is also stated that the petitioner challenged the award under Section 62 of the Act, dated 24- 5-2004 wherein the orders had been stayed on the condition of the petitioner depositing half of the decreetal amount or give security to that effect. After dismissal of the said O.A., this respondent-society had taken steps to execute the decree on 18-6-2005. Even then, the petitioner did not verify as to how the E.P. was filed when there is stay by the Tribunal. Hence, the contention of the petitioner that he was not aware of the dismissal of the O.A. is incorrect. The petitioner woke up only after the said E.P. was filed before the 3rd respondent. The respondent-Society is being put to severe loss and hardship by the action of the petitioner-society. Hence, the writ petition is liable to be dismissed. In the light of the averments made in the affidavit filed in support of the writ petition and stand taken in the counter affidavit and in the facts and circumstances of the case, the impugned order not to be interfered with. Learned A.P. Co-operative Tribunal Vijayawada at para 8 has observed as hereunder: “The contention of the petitioner that his counsel undergone for treatment and the said fact was not known to them, hence, the delay is caused. But this fact was not supported by any documentary evidence that his counsel undergone treatment. The 2nd respondent also opposed this fact. Being a responsible Chief-Executive of the Society, it is his duty to watch the entire proceedings going in this Tribunal either through his counsel or in person and act accordingly till its disposal, but the same was not done by the petitioner and caused abnormal delay of 1035 days in condoning the delay in not filing the restore petition to restore the order dated 20.1.2005 passed against the society by this Tribunal. This is a willful default and negligence on the part of the petitioner. No satisfactory explanation is given by the petitioner for condoning the delay of 1035 days for not filing the restore petition to restore the order dated 20-1-2005 against the society. In the absence of satisfactory explanation the abnormal delay of 1035 days cannot be condoned.” In the light of the satisfactory reasons recorded by the A.P. Co- operative Tribunal at Vijayawada and also taking into consideration of the inordinate delay of 1035 days in filing the application aforesaid, this Court is of the considered opinion that it is not a fit matter to be interfered with under Article 226 of the Constitution of India. Accordingly, the Writ Petition shall stand dismissed with costs. _________________________ Justice P.S.NARAYANA Dated 2-2-2010. Dvs HONOURABLE SRI JUSTICE P.S.NARAYANA WRIT PETITON No.25807 OF 2009 Dated 2-2-2010