ash 1 wp-315n324.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.315 OF 2011 WITH WRIT PETITION NO. 324 OF 2011 Mr. Mohamed S. Moharali. .. Petitioner. Vs Malad Rahul Co-operative Housing Society Limited. .. Respondent -- Shri N. Dinkar Rao for the Petitioner. Shri Vivek Kantawala with Ms Bhairavi Waravdekar and Ms Nikhita R. Prabhu i/by M/s. Vivek Kantawala & Co. for the respondent. -- CORAM : A.S. OKA, J DATED : 4TH OCTOBER, 2011 P.C. . On 16th August, 2011, this Court passed the following order:- “Heard learned counsel appearing for the parties. To show bona fides, the Petitioner will have to deposit a sum of Rs.50,000/- each in these two petitions with the Co- operative Court within a period of four weeks from today. The Petitioner will have to pay Rs.5,000/- each in both the Petitions by way of costs to the Respondent. The same shall be deposited in this Court within a period of four week from today. The parties are put to notice that an endeavour will be made to decide both the Petitions finally at the stage of admission. ash 2 wp-315n324.11 2. The learned counsel appearing for the Petitioner on instructions states that the Petitioner has deposited a sum of Rs. 50,000/- each in these two Petitions with the Co-operative Court. The Petitioner has handed over a cheques in the sum of Rs.5,000/- each to the Advocate for the Respondent towards the costs of these Petitions. 3. These Petitions arise out of the order passed by the learned President of the Maharashtra State Co-operative Appellate Court, Mumbai, by which an applications for condonation of delay in preferring Appeals against the awards made by the Co-operative Court has been rejected. 4. The Writ Petition No.315 of 2011 arises out of the award made in the Summary Case No.ABN/CC/IV/296 of 2004 by which the Co-operative Court directed the Petitioner to pay a sum of Rs.70,013/- with interest at the rate of 12% per annum. The Writ Petition No.324 of 2011 arises out of the award made in the Summary Case No.ABN/CC/IV/297 of 2004 by which the Co-operative Court directed the Petitioner to pay the sum of Rs.13,868/- with interest at the rate of 12% per annum. 5. The delay in both the Appeals was of 378 days. Learned counsel appearing for the Petitioner submitted that apart from the fact ash 3 wp-315n324.11 that the delay was explained, the Petitioner has deposited substantial amounts with the Co-operative Court. He submitted that a liberal view ought to have been taken by the learned President of the Co-operative Appellate Court and the delay ought to have been condoned. 6. The learned counsel appearing for the Respondent opposed the Petitions. He pointed out the averments made in Paragraph 4 of the Applications for condonation of delay. He pointed out that the averment made by the Petitioner was that a disputes filed by him and the dispute filed by the Respondent were clubbed together for the purpose of hearing. He submitted that the finding of the learned President of the Co-operative Appellate Court that the said case made out by the Petitioner is factually incorrect. He submitted that the petitioner has come out with a false case and, therefore, deserves no indulgence. 7. I have carefully considered the submissions. The impugned awards were passed on 18th August, 2009. It appears that an Appeals were belatedly filed wherein the delay was of 378 days. It is pointed out in the Applications that the order passed by the Co- operative Appellate Court of deposit of certain amount was complied with. The amount was deposited and even Written Statement was filed by the Petitioner in the disputes filed by the Respondent-Society. It was ash 4 wp-315n324.11 contended that the Petitioner was under an impression that as the Written Statement was taken on record, there was no need to file a separate application for seeking leave to defend the disputes. It is contended that the Petitioner became aware of the awards only when he received the warrant of attachment for execution of the award. The Petitioner applied for certified copy on 12th August, 2010 which was received by him on 13th August, 2010. It is stated that the Applications for condonation of delay were filed on 31st August, 2010. In Paragraph 4 of the applications for condonation of delay, the Petitioner has stated thus:- “4. .....I say that the cases filed by the respondents and the case filed by me was clubbed together with for hearing; however it seems that the cases filed by the respondents were heard separately and the case filed by me was kept for filing evidence with the result in the above matter neither myself nor my advocate were present in court when the matter was called out on 1.8.2009 for hearing with the result the judgment was passed on 1.8.2009.” 8. It is true that the Co-operative Appellate Court has observed that there was no such order passed of clubbing the disputes. However, the fact remains that when the dispute was heard, even the Advocate appointed by the Petitioner was not present. 9. While deciding the Applications under Section 5 of the ash 5 wp-315n324.11 Limitation Act, 1963, a liberal approach is contemplated. Now the Petitioner has deposited a sum of Rs.50,000/- in each case with the Co- operative Court. The Petitioner has handed over the cheques in the sum of Rs.5,000/- each to the Advocate for th Respondent towards the costs of the Petitions. 10. The substantial amount payable under the impugned judgment and award has been already deposited with the Co-operative Court by the Petitioner. Therefore, the delay deserves to be condoned. Permission will have to granted to the Respondent to withdraw the amounts deposited by the Petitioner subject to final outcome of the Appeals. 11. Hence, I pass the following order: ORDER: (a) The impugned orders dated 8th December, 2010 are quashed and set aside; (b) The Applications for condonation of delay made by by the Petitioner are hereby allowed subject to the Petitioner paying costs of Rs.5,000/- in each of the Petitions to the Respondent. Payment of costs has ash 6 wp-315n324.11 already been made as observed in the earlier part of this judgment. (c) The amounts deposited by the Petitioner with the Co-operative Court shall be permitted to be withdrawn by the Respondent-Society. However, the withdrawal will be naturally subject to the final outcome of the Appeals. (d) All contentions of the parties on merits are kept open; (e) The Petitions are allowed on above terms. ( A.S. OKA, J )