WRIT PETITION 2486 of 2009 on 4 July 1991

ORAL ORDER :-

1. Rule. With the consent of the parties matter is taken up for final disposal at admission stage.

2. Heard learned counsel for petitioner and respondent Zilla Parishad. Respondent Zilla Parishad presented a suit bearing Special Civil Suit No.81/2008 claiming recovery of amount of Rs.4,19,464/- along with interest @

18% p.a. According to petitioner/original defendant being a civil contractor had submitted a tender for purpose of construction of ground floor of building of zilla parishad school at Sonpeth. Work order was issued to him. Tender work was for an amount of Rs. 11,00,000/-. The defendant contractor/ petitioner herein furnished bank guarantee and commenced construction work however he did not complete the work within stipulated period of 30 months and as such he was granted extension for further period from 04/07/1991 to 31/03/1995 subject to penalty of Rs. 10/- per day. Even after the receiving substantial amount, work was not completed and thus contractor/defendant violated the conditions of the contract. The plaintiff was therefore constrained to get the work done from some other agency and for that purpose plaintiff was required to pay additional sum of Rs. 4 lacs. According to terms and conditions of tender, defendant was liable to make good the loss incurred by Zilla Parishad. The defendant was called upon to make the payment however, he failed to give response to the notice hence suit for recovery of amount came to be instituted against him. Defendant did not cause his appearance and suit was proceeded exparte against him. Learned trial judge after considering the case put up by plaintiff granted decree in respect of recovery of amount of Rs.4,19,464/- on 29.08.2001. The defendant-petitioner herein presented an application requesting the court to set aside exparte decree passed on 29.08.2001 and also presented an application seeking condonation of delay in approaching the court. It is contended in the application that on account of illness he was not in a position to prosecute the litigation diligently. The petitioner contends that he was facing serious ailment and was required to undergo surgery. Petitioner/original defendant submitted medical papers in respect of treatment which he claims to have received at the hospital at Aurangabad as well as other hospitals. Petitioner also denied to have refused to accept notice sent through post. According to him observation in the judgment that he has refused to accept notice is incorrect and against record. In these circumstances, the petitioner/original defendant requested the court to condone delay and to set aside exparte decree. Application was opposed by the original plaintiff/respondent herein contending that cause shown by the defendant is not proper and he has failed to make out case for condonation of delay. The documents tendered by the petitioner/original defendant pertains to period subsequent to the date of issuance of notice. Considering rival contentions, trial court was not convinced with the merits of contentions raised by the defendant/petitioner herein and as such rejected the application seeking condonation of delay.

3. I have perused the application as well as impugned order passed by the trial court.

4. I am of the opinion that considering the cause demonstrated by petitioner, trial court ought to have consider the application favorably and decree passed against defendant contractor ought to have been set aside as it is in respect of payment of huge sum amounting to more than 4 lacs with interest @ 18% p.a. The fact remains that defendant petitioner herein was suffering from illness and was hospitalized. It is contended that, till today the defendant is required to take medical treatment. Considering all these relevant aspects, I am of the opinion that subject to fulfillment of certain conditions application tendered by the defendant can be considered. In pursuance to the order passed by this Court directing the defendant/ petitioner herein to deposit amount of Rs.50,000/-, he has complied with the same and amount has been deposited on 15.12.2009. The original plaintiff-respondent herein can be permitted to withdraw said amount. Withdrawal of the amount by the respondent-original plaintiff will however be subject to final result of the suit. In this view of the matter, the order passed by the trial court rejecting the application tendered by the petitioner seeking condonation of delay in presenting application for setting aside exparte decree is quashed and set aside. Trial court is directed to consider the application for setting aside the exparte decree favorably in view of the fact that defendant petitioner herein has deposited Rs.50,000/- in compliance of the order passed by this Court. It is appropriate for the trial court to extend an opportunity to the defendant to submit his case and thereafter trial court may decide the suit on its own merits. For the reasons stated above, trial court is directed to decide the application tendered by the petitioner herein – defendant for setting aside exparte decree, and in the event result of application turns out in favour of petitioner herein, may proceed to decide the suit in accordance with the provisions of law. Trial Court is directed to decide matter expeditiously as possible preferably by the End of JULY, 2010.Rule is accordingly made absolute.

aaa/2486.09

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( R. M. BORDE ) JUDGE