Bombay High Court
Arun Kela And Others vs Sandhya Rajendraprasad Somani on 13 December, 2016
Bench: T.V. Nalawade
1 WP 8033 of 2016
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Writ Petition No.8033 of 2016
1) Arun Kela,
Age 58 years,
Occupation : Business and
Agriculture,
R/o.7, Venus Apartment,
Cuff Parade, Mumbai - 5.
2) M/s S.H. Khatod & Sons,
Through Partner,
Shriniwas B. Somani,
Age 81 years,
Occupation : Business and
Agriculture,
R/o Shriniketan, 5th Floor,
86-A, Netaji Subhashchandra Road,
Marine Drive, Mumbai - 2.
Through Power of Attorney Holder
Prasad s/o Bhausaheb Chitalkar,
Age 26 years,
Occupation: Agriculture,
R/o Kuranpur,
Taluka Shrirampur,
District Ahmednagar. .. Petitioners.
Versus
* Sandhya Rajendraprasad Somani,
Age 51 years,
Occupation: Agriculture,
R/o Belapur (Bk),
Taluka Shrirampur,
District Ahmednagar. .. Respondent.
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2 WP 8033 of 2016
Shri. Rahul R. Karpe, Advocate, for petitioners.
Shri. S.T. Shelke, Advocate, for respondent.
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CORAM: T.V. NALAWADE, J.
DATE : 13 DECEMBER 2016
ORAL JUDGMENT:
1) Rule, rule is made returnable forthwith. Heard
both sides by consent for final disposal.
2) The petition is filed to challenge the order
made on application, Exhibit 31 which was filed in Special
Civil Suit No.30/2015 by present petitioners. The suit is
pending in the Court of the Civil Judge, Senior Division,
Shrirampur, District Ahmednagar. The suit is filed for
specific performance of agreement of sale. It appears
that the present petitioners appeared in the suit but
written statement was not filed within 60 days and even
within 90 days. Delay of 61 days is caused in filing written
statement if the period of 90 days given is excluded. It is
the case of the petitioners that they are residents of
Mumbai and petitioner No.2 is aged about 80 years. It is
their contention that due to absence of contact between
3 WP 8033 of 2016
the Advocate and the party the written statement could
not be filed.
3) Learned counsel for the petitioners submitted
that the petitioners are in possession as per instructions
given by his client. This stand creates probability that
there are delaying tactics. However, nature of suit needs
to be kept in mind at the time of consideration of such
proceeding. When relief of specific performance is
claimed, many things are required to be proved even by
plaintiff and defendants can take specific stand in respect
of these facts which are required to be proved by the
plaintiff. In view of this circumstance, this Court holds
that opportunity needs to be given to present petitioners,
original defendants to file written statement and for that
the order of "No WS" needs to be set aside.
4) Learned counsel for the respondent, plaintiff
placed reliance on two reported cases. (1) (2012) 12 SCC
461 (Suresh Kumar Kantilal Patel v. Balkrishna Laxmidas
Kothari); and, (2) AIR 2016 SC 86 (New India Assurance
Company Limited v. Hilli Multipurpose Cold Storage
4 WP 8033 of 2016
Private Limited). On the other hand, learned counsel for
the petitioners placed reliance on the case reported as
AIR 2005 SC 3353 (Salem Advocate Bar Association v
Union of India). Learned counsel for the respondent,
plaintiff submitted that in recently decided case of New
India Assurance Company (cited supra) the three-Judge
Bench of the Supreme Court has held that the period
which is fixed by the Civil Procedure Code is mandatory in
nature and delay condonation application cannot be
allowed. The case of Salem Advocate Bar Association was
not referred by the Apex Court and there are still
observations of Salem Advocate Bar Association's case
which are to the effect that the provision is directory in
nature.
5) In view of these circumstances this Court holds
that the petition needs to be allowed. However, the
respondent is made to spend on the present litigation. As
there is possibility of attempts being made by defendants
to protract the things, this Court holds that cost of
Rs.25,000/- (Rs. Twenty Five Thousand Only) needs to be
imposed for allowing the defendants to file written
5 WP 8033 of 2016
statement.
6) In the result, the petition is allowed subject to
deposit of cost of Rs.25,000/- (Rs. Twenty Five Thousand
Only) by the defendants in the trial Court prior to 23-12-
2016. If the amount is deposited it is to be presumed that
the order made by the trial Court of "No WS" is set aside
and the application filed for setting aside that order is
allowed by this Court. If the amount is not deposited it is
to be presumed that the present petition is dismissed. If
the amount is deposited, it is to be paid to the plaintiff.
Rule is made absolute in above terms. Authenticated copy
is allowed to both sides.
Sd/-
(T.V. NALAWADE, J. )
rsl
