M/S. Jagdamba Synthetics vs M/S. Aswani Builders And Ors
2022 Latest Caselaw 4553 Bom

                       (915)-WPST-8323-22.doc.


                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                       CIVIL APPELLATE JURISDICTION
          Digitally
          signed by
          BALAJI
BALAJI    GOVINDRAO
GOVINDRAO PANCHAL
PANCHAL   Date:
          2022.04.28

                                    WRIT PETITION STAMP NO.8323 OF 2022
          16:50:10
          +0530




                       M/s. Jagdamba Synthetics                            ..Petitioner
                             Versus
                       M/s. Aswani Builders and Ors.                       ..Respondents

                       Mr. Yogesh P. Rane a/w Shivali M. Khadke, for the Petitioner.
                       Mr. Dilip Aswani - Partner of Respondent No.1 - present.

                                                    CORAM : NITIN W. SAMBRE, J.

DATE : 28th APRIL, 2022

P.C.

1. A suit for specific performance being Regular Civil Suit No.610 of 1997 came to be decreed on 31 st August, 2006. After the said decree was pressed in execution, it appears that the petitioner/ defendant No.1/judgment debtor to the aforesaid suit preferred an appeal along with the prayer for condonation of delay. The said prayer is rejected vide impugned order dated 15th February, 2022. As such, this petition.

2. Submissions of counsel for the petitioner are, if the events as had occurred during the pendency of the suit are appreciated, what can be inferred is, though time and again the petitioner/defendant No.1 has engaged various advocates, however, he was failed to get proper or appropriate advise. According to him, it is only after the notice of execution proceedings was received, he

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was advised to file appeal and as such, delay caused is unintentional and bonafide. Drawing support from the judgment of the Apex Court in the matter of Rafiq Vs. Munshilal and Anr. reported in (1981) 2 SCC 788, so also from the judgment in the matter of Vidya Devi Vs. State of Himachal Pradesh and Ors. reported in AIR 2020 SC 4709, he would urge that failure of the lawyer should not act to the detriment to the petitioner/applicant and as such, there is sufficient cause for ordering delay condonation.

3. The respondent No.1 who appears in person would support the order impugned.

4. The fact remains that by way of the application before the Appellate Court vide Civil Misc. Appeal No.243 of 2021, the petitioner/judgment debtor sought condonation of delay of 5486 days.

5. Though the Court is not expecting from the petitioner to explain day to day delay, however, there are no convincing reasons placed on record to infer that delay was unintentional or bonafide. The petitioner has tried to blame his lawyer that he was not conducting proceedings properly before the Court below. However, what can be noticed from the observations in the proceedings that time and again petitioner has changed the lawyer. That being so, the petitioner is well aware of the Court process and the proceedings to be conducted. As such, it cannot be inferred that

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petitioner was not properly advised in the proceedings. Rather it is apparent that the petitioner himself was negligent in pursuing proceedings before the Court below. As such, Appellate Court was justified in rejecting the prayer in the absence of the cause which are germane to grant prayer for condonation of delay. That being so, no error could be noticed.

6. The petition as such fails, dismissed.

                                          [NITIN W. SAMBRE, J.]




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