Jalgaon Golden Warehouse ... vs Maharashtra Agro Industries ...
2016 Latest Caselaw 584 Bom

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     drp
             IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                        BENCH AT AURANGABAD




                                                                          
                         WRIT PETITION NO.3312 OF 2015




                                                 
     Jalgaon Golden Warehouse Corporation,                          PETITIONER
     Through Proprietor,
     Nitin Madanlal Vyas,
     Age - 38 years, Occ - Business,




                                                
     R/o C-21, Transport Nagar,
     Jalgaon, Taluka and District- Jalgaon

              VERSUS




                                        
     1.       Maharashtra Agro Industries Development           RESPONDENTS
                             
              Corporation Limited,
              Through Regional Manager,
              R/o 48, Shahu Nagar, Jalgoan,
              Taluka and District - Jalgaon
                            
     2.       Rashtriya Chemical & Fertilizer Ltd.,
              Through manager,
              Near Jalgaon Fruit Sale Society,
      

              Opp - Tahasildar Office,
              Baliram Peth, Jalgaon
   



     3.       The State of Maharashtra                               (DELETED)

                                     .......

Mr. S. H. Tripathi, Advocate for the petitioner

Mr. Jagdish H. Toshniwal, Advocate for respondent No.1 Mr. L. B. Pallod, Advocate for respondent No.2 .......

[CORAM : SUNIL P. DESHMUKH, J.]

DATE : 14th MARCH, 2016

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith and heard learned

advocates for the parties finally with consent.

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2. After hearing learned advocates, the position emerges that

special civil suit had been instituted by respondent No.1, for

accounts way back in 2004, issues were framed somewhere

around 2008 and affidavit by the plaintiff had been filed at the

end of 2009. Since then, the matter does not appear to have

been properly conducted on behalf of the petitioner - defendant

No.1. Under the circumstances, on 5th August, 2013 an order of

"no cross" came ig to be passed against defendant No.1.

Thereafter, on 26th August, 2013, application Exhibit-121 had

been moved for setting aside said order of "no cross" by

defendant No.1. The application was resisted by the plaintiff by

filing say on 26th August, 2013 contending that the matter is

being neglected and not conducted by defendant No.1 and also

same is the case in respect of the counter claim filed by

defendant No.1 and for several dates, defendant No.1 and his

advocate have failed to attend to the court matter. In the

circumstances, it was requested that counter claim of defendant

No.1 be dismissed in default and application Exhibit-121 be

rejected. Accordingly, application Exhibit-121 came to rejected

for the reason that it had not been accompanied affidavit of

defendant No.1 and that the same had not given any reasons.

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3. Subsequently, application Exhibit-126 had been moved by

defendant No.1 making amends in respect of the deficiencies as

were seen by the trial court while rejecting application Exhibit-

121, referring to various reasons for which the matter went

unattended and affidavit in support of the application had also

been filed. However, said application came to be rejected under

order dated 15th December, 2014 by the trial court referring to

that since Exhibit-121 was rejected, this application as well is

rejected.

4. On the very next date, the counter claim filed by defendant

No.1 as well came to be dismissed referring to that the

defendant has not cross examined witnesses, the plaintiff has

also not examined any other witness, no cross order has been

passed against defendant No.1 and though sufficient opportunity

has been given to the defendant, however, the defendant neither

cross examined the witness nor examined any witness. Under

the circumstances, the counter claim also came to be dismissed.

5. Learned advocate for the petitioner refers to various

events and places reliance on the contents of the writ petition,

particularly, paragraphs No.4 and 5. These contents do not

appear to have been seriously disputed by filing counter to the

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writ petition.

6. In the circumstances, I deem it appropriate that it would

be expedient and in the interest of justice to allow the writ

petition and accede to the request being made under the writ

petition by setting aside orders dated 5 th August, 2013 on

Exhibit-121, order dated 15th December, 2014 on Exhibit-126

and order dated 16th December, 2012 on Exhibit-122 along with

order of no cross on Exhibit-82, however on the condition that

the petitioner shall deposit a sum of Rs.25,000/- towards costs

in the trial court within a period of four weeks from the date of

receipt of writ of this order to the trial court. Upon deposit of the

costs, the amount be allowed to be withdrawn by the plaintiff.

7. Cross examination be conducted by defendant No.1 within

a period of four weeks from the date of deposit of costs and the

matter be proceeded with accordingly by the trial court as

expeditiously as possible.

8. With aforesaid directions and observations, the writ

petition stands disposed of. Rule is made absolute accordingly.

9. At this stage, learned advocate Mr. Tripathi draws attention

to the fact that pursuant to the orders passed by this court

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earlier on, an amount of Rs.10,000/- has been deposited by the

petitioner in the trial court. In view of the same, the petitioner is

required to deposit further sum of Rs.15,000/- making up

together an amount of Rs.25,000/- towards costs.

[SUNIL P. DESHMUKH, J.]

drp/wp3312-15