Bombay High Court
City Industrial Development ... vs M/S Isha Enterprises Represented ... on 11 January, 2022
Bench: S. K. Shinde
Digitally
signed by
SHAMBHAVI
SHAMBHAVI NILESH
NILESH SHIVGAN 10-IA-4116-2021.odt
SHIVGAN Date:
2022.01.11
13:03:16
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
INTERIM APPLICATION NO.4116 OF 2021
IN
FIRST APPEAL NO.167 OF 2013
City Industrial Development Corporation
of Maharashtra Ltd. ...Applicant
IN THE MATTER BETWEEN
City Industrial Development Corporation
of Maharashtra Ltd. ...Appellant
Vs
M/s. Isha Enterprise ...Respondents
...
Mr. G.S.Hegde with Ms. P.M. Bhansali for the
Applicant/Appellant-CIDCO.
Mr. Mayur Khandeparkar i/by Mr. Milind More for Respondents.
CORAM : SANDEEP K. SHINDE J.
DATE : JANUARY 11, 2022.
P.C. :
Heard Ms. Bhansali the learned counsel for the applicant,
the City Industrial Development Corporation of Maharashtra Ltd.
('CIDCO' for short) and Mr. Mayur Khandeparkar, the learned
counsel for the respondents.
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2 Applicant, CIDCO, seeks condonation of 367 days' delay
and restoration of the First Appeal.
3 The CIDCO, instituted the First Appeal against the
judgment and decree dated 12th August, 2011 in Special Civil Suit
No.934 of 1994 passed by the learned Civil Judge, Senior Division,
Thane. That suit was instituted by the, respondents-M/s. Isha
Enterprises seeking decree of specific performance of the contract,
possession, declaration and permanent injunction in respect of the,
suit property situated at New Bombay against the CIDCO. By decree,
the CIDCO was directed to execute agreement of lease in favour of
the respondent/plaintiff and hand over possession of the suit plot
within two months from depositing the amount of Rs.21 Lakhs by the
plaintiffs in the Court.
4 The appeal was admitted on 20th February, 2013 by the
Division Bench of this Court and execution of the decree was stayed.
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5 Pending appeal vide conditional order dated 24 th January,
2019, appellants were directed to file paper-book, within eight
weeks, failing, to which appeal to stand dismissed for non-
prosecution without further reference to the Court. Appellant did not
file paper-book within the stipulated period. As a result, the appeal
was dismissed for non-prosecution.
6 Taking note of the, fact that the appeal has been
dismissed and the stay stood vacated, respondent moved an
application, i.e., Special Darkhast No.14 of 2020.
7 Mr. Khandeparkar, the learned counsel for the
respondents/decree-holder, has placed on record, compilation of the
orders, roznama, in Special Darkhast No.14 of 2020; wherefrom he
has pointed out, although served, the CIDCO neither marked presence
in the Darkhast proceedings nor resisted/opposed the execution of the
decree nor made efforts to restore the First Appeal. As a result, the
executing Court, executed possession warrant on 6 th November, 2021
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and decree stood satisfied. Mr. Khandeparkar, further, submitted that,
though the CIDCO filed an application seeking restoration of the
appeal in February, 2021, it was served on the respondents in
December, 2021, i.e., after execution of the decree. Submission of
Mr. Khandeparkar, is that the CIDCO chose to remain passive
throughout in the darkhast proceedings although sufficient
opportunity afforded to it, which is evident from the Roznama-
proceedings. Mr. Khandeparkar submitted that since possession of the
suit property has been handed over to decree-holder, appeal is
rendered infructuous. Additionally, he submitted, application in hand
does not disclose 'sufficient cause' which prevented the applicant-
CIDCO from seeking restoration of the First Appeal and interim relief
within limitation. On these grounds, Mr. Khandeparkar opposed the
application.
8 Per contra, Ms. Bhansali, the learned counsel for the
CIDCO would urge that, applicant-CIDCO, shall file paper-book
within fifteen days. Further, according to Mr. Bhansali though
application was filed in February, 2021, due to pandemic, it could
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not be heard. She would further urge that application discloses
'sufficient cause', which prevented the CIDCO from preferring an
application in time, for restoring First Appeal and, therefore, delay
be condoned and appeal be restored to the file.
9 Herein, the suit was instituted in 1994. Decree was
passed in August, 2011; Appeal was dismissed in January, 2019;
Respondent/CIDCO filed Darkhast on 12 th February, 2020.
Applicant/CIDCO was served and Darkhast was posted for reply of
the the CIDCO on 30th January, 2021; 20th March, 2020; 17th April,
2021; 17th July, 2021 and 22nd September, 2021. Yet, CIDCO did not
file reply. On 30th October, 2021, Executing Court issued possession
warrant under Order 21 Rule 35 of the Code of Civil Procedure,
1908. On 26th November, 2021, warrant was executed and possession
of the suit property was handed over to decree-holder vide
panchanama. Therefore, in spite of the fact that the CIDCO was duly
served in January, 2021, it did not resist the execution of the decree.
Be that as it may, although the CIDCO had filed instant application
in February, 2021, seeking restoration of the First Appeal, that fact
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was not even brought to the notice of the Executing Court. Although
the instant application was filed in February, 2021, it was moved for
consideration in December, 2021/January, 2022. These facts
demonstrate and confirm that the CIDCO was neither attentive in
contesting the execution proceedings nor diligent in pursuing the
instant application. For that reason, unhesitantly, I hold that the
CIDCO was not interested in defending its' rights in the suit
property. Now, coming back to the application seeking delay
condonation, it may be noted, application was filed in February,
2021; but served on the respondents in December, 2021. Paragraph
five of the application conveys that the CIDCO was aware of the
execution proceedings. Same paragraph also conveys that decree-
holder had applied for withdrawal of the amount. This averment is
incorrect in-as-much as the decree-holder instituted the proceedings
to execute the possession decree. It exhibits casual approach of the
CIDCO. Even otherwise, paragraphs 5,6,7,8,9 of the application do
not disclose the circumstances, which prevented the CIDCO in
pursuing the remedy in time, for restoring First Appeal to file.
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10 For all the reasons, in my view, no case is made out to
condone delay. As a result, application deserves no consideration. It
is rejected.
(SANDEEP K. SHINDE, J.)
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