1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. CIVIL APPLICTION No.102/2010 IN M.C.A.ST.NO.16374/2009 IN F.A.NO.445/93 Oriental Insurance Company Limited Versus Mery Varghis wd/o A.C. Varghis and others _______________________________________________________________________ Office Notes, Office Memoramda of Coram, appearances, Court's orders of directions Court's or Judge's orders. and Registrar's Orders. ______________________________________________________________________________ Shri D.N. Kukday, Advocate for the appellant, Shri A.I. Sheikh, Advocate for respondent Nos. 1 & 2. CORAM : R.M.SAVANT, J. DATED : 24.01.2011. By the above civil application, the applicant/appellant seeks condonation of delay of 2 years 352 days in filing the application for restoration of the appeal, which has been dismissed for non-prosecution on 22/9/2006. The reasons as to why the delay has occasioned has been mentioned in paragraph 1 of the civil application. The sum and substance of the reasons is that the First Appeal, which was admitted in the year 1993 was listed for final hearing on 22/9/2006 on which day none appeared for the applicant/appellant, in view of the fact that the learned Counsel for the applicant/appellant had failed to mark the matter on the daily board, it is required to be noted that the 2 matter was earlier listed on 21-9-2006 on which day on account of non-appearance of the learned Counsel for the applicant/appellant, the matter was adjourned to 22/9/2006. The applicant/ appellant which is an Insurance Company was labouring under an impression that the above First Appeal is yet pending in this Court and that the learned Counsel would inform about the further developments. It is only when it made enquiries in the matter sometime in August 2009, it was revealed that the above appeal has already been dismissed for non-prosecution on 22/9/2006. Thereafter the applicant/appellant has entrusted the matter to the present learned Counsel who has filed the instant application. On behalf of the claimants i.e. respondent Nos. 1 and 2 an affidavit in reply has been filed opposing the application. It is the contention of the respondents that the reasons mentioned in the above application do not constitute a sufficient cause for condonation of delay. It is further contended that there is huge delay of 2 years 352 days in filing the application for restoration of the appeal. Having heard the learned Counsel for the parties, in my view, the above application is required to be allowed for the reasons below - It is well settled that a party should not be made to suffer on account of its Counsel/Advocate. It is no fault of the applicant/appellant that it went unrepresented on 3 22/9/2006 and the same can only be attributed to the fact that the Counsel for the applicant/appellant did not notice the matter on daily board. It was only after enquiries made by the applicant/appellant that it became aware of the dismissal of the appeal for non-prosecution sometime in August 2009. The reasons mentioned in the above application would deserve acceptance, hence the delay in filing the application for restoration is required to be condoned. In my view, the interest of justice would be served if the applicant/appellant is directed to pay costs of Rs.10,000/- to respondent Nos. 1 and 2 for the inconvenience that has been caused to them on account of the delay. The payment of such costs would be a condition precedent. The costs shall be deposited in this Court within two weeks and only on the learned Counsel for the applicant/appellant producing of evidence having deposited the costs, that the benefit of this order would enure to the applicant/appellant. If such costs are not deposited as directed by this Court, the application for condonation of delay would be deemed to be dismissed. The Respondents 1 and 2 would be entitled to withdraw the said costs. Civil Application is accordingly disposed of. MISC. CIVIL APPLICATION ST.NO.16374/2009 By the above application, the applicant/appellant seeks restoration of the appeal, which has been dismissed for non-prosecution on 22/9/2006. By an order passed today in 4 Civil Application No.102/2010, the delay in filing the application for restoration of the appeal has already been condoned. In view thereof, the above civil application is required to be allowed and is accordingly allowed. The appeal would be restored to file subject to the order passed in Civil Application No.102/2010. Misc. Civil Application is accordingly disposed of. JUDGE pma