United Co-Operative Housing ... vs M/S. Bhamasha Builder And Ors
2023 Latest Caselaw 8515 Bom

2023:BHC-AS:23730
                                                                               50-cra535-2018.doc


                    AGK
                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  CIVIL APPELLATE JURISDICTION

                            CIVIL REVISION APPLICATION NO.535 OF 2018


                    United Coop. Housing Society Ltd.             ... Applicant
                              V/s.
                    Bhamasha Builder & Ors.                       ... Respondents


                    Mr. Vishal Kanade with Mr. Viraj Parikh i/by Dharmesh
                    S. Jain for the applicant.
                    Mr. Ashok Kumar Dubey i/by SAVJ Law Solutions for
                    respondent No.1.



                                                 CORAM : AMIT BORKAR, J.

                                                 DATED     : AUGUST 21, 2023
                    P.C.:

1. By the impugned order, Civil Court condoned delay of three years and three months and set aside ex parte decree passed against the respondents.

2. The applicant is a housing society who filed a civil suit for conveyance of land under the provisions of the Maharashtra Ownership of Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 ("MOF Act, 1963" for short). The City Civil Court, Dindoshi by judgment and decree dated 30 November 2011 directed defendants to execute conveyance in favour of plaintiff/society.

3. The promoter on 27 November 2015 filed an application for

50-cra535-2018.doc

setting aside the ex parte decree along with application for condonation of delay. In paragraph 5 of the application seeking condonation of delay, the defendant/promoter accepted fact of knowledge of decree in the month of September 2012. However, according to the promoter/developer, he applied for certified copy of the decree and after receipt of certified copy he was advised to file a suit challenging ex parte decree. Accordingly, suit was filed but as per the legal advise it was withdrawn. Thereafter, there was some internal disputes between the partners and, therefore, there was delay in filing application seeking condonation of delay.

4. On perusal of the impugned order, it appears that the Civil Court ignored the fact of knowledge of defendant/developer of ex parte decree in the month of September 2012. In my opinion, in view of knowledge of ex parte decree in September 2012, sufficient cause for filing application seeking condonation of delay on 14 December 2015 is not accountable.

5. Accepting explanation furnished by the developer that he was advised to file civil suit and thereafter there were internal disputes between partners, still the cause shown in the application falls short of sufficient cause as contemplated by Section 5 of the Limitation Act.

6. The nature of controversy between the parties is in relation to enforcement of statutory rights conferred by the provisions of MOF Act, 1963. Therefore, in my opinion, the applicant has made out a case for setting aside the impugned order on the ground that the defendant/promoter has failed to furnish sufficient cause.

50-cra535-2018.doc

Hence, following order:

a) The impugned order dated 8 June 2018 is quashed and set aside;

b) Notice of Motion No.3382 of 2015 stands dismissed.

7. The writ petition stands disposed of in above terms. No costs.

(AMIT BORKAR, J.)