Bombay High Court
Jaikishan Kishanlal Damani vs M/S Kiran Pipe Industries Thro. ... on 8 June, 2022
Bench: R. G. Avachat
SA.239.2022.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.239 OF 2022
WITH
CIVIL APPLICATION NO.7030 OF 2022
Jaikishan s/o. Kishanlal Damani,
Age:67 years, Occ. Business,
r/o. Shivkrupa, 74, Income Tax Colony,
Pratap Nagar, Nagpur ..Appellant
Vs.
M/s. Kiran Pipe Industries,
I.S.O. 9001/2000 certified company,
Manufacturers of I.S.I. mark rigid pvc pipes,
through G.P.A. holder-
Shri Vikas s/o. Digamber Devalkar,
Age:51 years, Occ. Service,
r/o. M-84, Additional M.I.D.C. Area,
Behind Khedi Petrol Pump, Jalgaon ..Respondent
----
Mr.Sachin S. Deshmukh, Advocate for appellant
Mr.Sanket S. Kulkarni, Advocate for respondent
----
CORAM : R.G. AVACHAT, J.
DATE : JUNE 08, 2022
ORDER :-
With the consent of learned counsel for the parties, the
appeal is heard finally at admission stage.
2. The challenge herein is to the judgment and order refusing
to condone the delay in preferring first appeal against the judgment
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and decree dated 07.10.2019 passed by learned 3 rd Joint Civil Judge,
Senior Division, Jalgaon, in Special Civil Suit No.74 of 2015.
3. The appellant herein is defendant in the suit. It was a
suit for recovery of a sum of Rs.11,55,003/- due on account of sale
of goods on credit. The trial Court decreed the suit in toto with
interest at the rate of 15% per annum. The said decree was sought
to be challenged in the first appeal. There was delay of little over
500 days in preferring the first appeal.
4. The first appellate Court refused to condone the delay on
the ground that the appellant did not lead oral evidence to show
sufficient cause for condonation of delay. The Court found the
appellant to be negligent in prosecuting the proceedings. He tried to
blame the Counsel who, allegedly, failed to communicate him about
the progress of the suit. In view of the first appellate Court, the
status of the proceedings in the suit could have been ascertained on-
line. The appellant was a businessman. He, therefore, could not
claim ignorance thereof.
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5. Learned counsel for the appellant would submit that with
a view to give the appellant an opportunity of hearing, the appeal
may be allowed, remanding the matter back to first appellate Court
to decide it on merits. According to him, the appellant is a Nagpur
based person. The suit has been decided by the Court at Jalgaon.
The Advocate representing the appellant in the suit did not keep him
posted about the progress of the proceedings. Turning to the merits
of the matter, learned counsel would submit that based on the sole
testimony of a power of attorney of the original plaintiff, the suit
came to be decreed. Learned counsel meant to say that the
appellant has a very good case on merits.
6. Learned counsel for the respondent would, on the other
hand, submit that the appellant was grossly negligent. He did not
lead oral evidence in proof of the reasons that caused delay in
preferring the first appeal. According to learned counsel, it was a
commercial transaction. If the Court is inclined to allow the appeal,
the appellant may be directed to furnish security towards satisfaction
of the decretal amount.
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4 SA.239.2022
7. Considered the submissions advanced. Perused the
impugned judgment and decree. Without making any observation
about merits of the matter, suffice it to say that the appellate Court
ought to have allowed the delay condonation application by imposing
costs. Same would have furthered the cause of justice. Since the
first appellate Court has failed to do so, this Court is inclined to allow
this appeal in terms of the following order:-
ORDER
(i) The Second Appeal is allowed, subject to cost of
Rs.2,000/- (Rupees Two Thousand).
(ii) The order impugned herein is hereby set aside with a
direction to the first appellate Court to decide the first appeal on
merit, after giving opportunity of hearing to the parties thereto.
(iii) Pending the first appeal, there shall be stay to the
execution of the decree dated 07.10.2019 passed by learned 3 rd
Joint Civil Judge, Senior Division, Jalgaon, in Special Civil Suit No.74
of 2015, on condition that the appellant shall deposit with the trial
Court 30% of the principle amount allegedly due from him and shall
further give a bank guarantee in the equal amount (30% of the
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principle amount) as a security, within a period of two months
herefrom.
(iv) Failure on the part of the appellant to comply with the
above directions, the stay of execution of the decree, to stand
vacated without reference to this Court.
(v) In view of disposal of the Second Appeal, Civil
Application also stands disposed of.
[R.G. AVACHAT, J.]
KBP
