Bombay High Court
Sahebrao Gangadhar Kadam ... vs The Board Of Trustees Of The Port Of ... on 20 February, 2023
Bench: K.R. Shriram, Rajesh S. Patil
Digitally
signed by 1/5 13-IA-4580-2022.doc
GAURI AMIT
GAURI GAEKWAD
AMIT Date:
GAEKWAD 2023.02.23 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
10:28:24 ORDINARY ORIGINAL CIVIL JURISDICTION
+0530
INTERIM APPLICATION NO.4580 OF 2022
IN
APPEAL (L) NO.23047 OF 2021
Sahebrao Gangadhar Kadam .....Applicant/Appellant
Vs.
The Board of Trustees of the
Port of Bombay and Ors. .....Respondents
----
Mr. Chaitanya Nikate a/w. Mr. Jitendra Gautam for applicant/appellant.
Mr. Rahul Jain a/w. Ms. Khushboo Rupani i/b. HSA Advocates for
respondent no.1.
Mr. Mustafa Bohra a/w. Mr. Vivek Sharma i/b. M/s. Solomon and Co. for
respondent nos.2 to 9.
----
CORAM : K. R. SHRIRAM &
RAJESH S. PATIL, JJ.
DATED : 20th FEBRUARY 2023
P.C. :
1 Applicant is seeking condonation of delay of approximately
36 days in filing the appeal. Though the number of days does not look very
large, applicant, according to us has come to the Court with unclean hands.
2 In the application, the reason for the delay can be found in
paragraph 3 where applicant states that the reason for the delay is because
applicant is staying in Nashik and is having sugar problem and because of
the corona virus situation in Bombay he could not contact his advocate on
record during the corona virus situation and hence, he immediately decided
to file an appeal and contacted his present advocate who advised him to
apply for the certified copy for filing the appeal. The delay of 36 days on
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the part of applicant in filing the present appeal is due to the reason found
in paragraph 3, which reads as under :
3. The Applicant further states that the Judgment of the Ld.
Single Judge under challenge is passed on 2/8/2021 and
thereafter the Applicant applied for the certified copy on
15/9/2021 which was ready on 16/9/2021 and was received
by the Applicant on 22/9/2021 and hence there is a delay of
33 days in filing the present appeal. The reason behind the
same is that the Applicant is staying in Nasik and his having
sugar problem and because of the Corona Virus situation in
Bombay he could not contact his Advocate on record during
the Corona Virus situation and hence he immediately decided
to file the appeal and he contacted his present advocate who
advised him to apply for the certified copy for filing the
appeal. The delay of 36 days on the part of the Applicant in
filing the present Appeal is due to the reason that the
situation of corona virus in Bombay is not still eased. Beside
the same since last 6 weeks there was a occasional heavy
rainfall in Nasik and this also the reason why the Applicant
could not contact his Advocate to file the appeal.
3 In the affidavit in reply on behalf of respondent no.1 filed
through one Ganesh Pol affirmed on 3 rd February 2023, respondent no.1 has
opposed the application and stated that appellant has executed leave and
license agreement, whereby he unauthorisedly sublet the east wing of
ground floor of the building known as Commerce House and also the first
floor by executing the leave and license agreements dated 2 nd June 2021
and 20th September 2021, respectively and registered with the office of
Joint Sub-Registrar, Mumbai. It is also stated that applicant had initiated
multiple proceedings in different Courts against different parties and also
filed various affidavits between June 2021 to October 2021, the period
during which appellant claims to be in Nashik. Copies of the daily status of
some of those matters on 21 st September 2021, 22nd September 2021,
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23rd September 2021, 27th September 2021 and 12th October 2021 are all
annexed to the affidavit in reply. In the affidavit in rejoinder, appellant has
admitted that he has executed and registered a leave and license agreement
on 2nd June 2021 and 20th September 2021. Appellant has in the rejoinder
not denied the specific allegation in the reply that he had filed various
affidavits between June 2021 to October 2021, the period when appellant
claims to be in Nashik.
4 The Apex Court in Pundlik Jalam Patil (Dead) By LRS. V/s.
Executive Engineer, Jalgaon Medium Project & Anr. 1, has held that when an
incorrect statement is made in an application seeking condonation of delay,
that itself is sufficient to reject the Application without any further inquiry
as to whether the averments made in the application reveal sufficient cause
to condone the delay. The Apex Court held, "that a party taking a false
stand to get rid of the bar of limitation should not be encouraged to get any
premium on the falsehood on its part by condoning delay".
Paragraph 11 and 12 of the said judgment read as under :
"11. Whether the respondent made incorrect statement in the
application seeking condonation of delay? There is no
dispute whatsoever that the respondent being the beneficiary
of the acquisition has been duly impleaded as a party-
respondent in the reference cases as is required in law. It not
only appeared in the matter through a properly instructed
counsel but also filed its written statement opposing the
claim for enhancement of compensation but did not choose
to lead any evidence whatsoever. In the application filed in
the High Court the plea taken by the respondent is as under :
The applicant submits that, although the applicant
being the acquiring body, was arrayed as the opponent
1. (2008) 17 SCC 448
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in the said reference, the Opponent 4 herein (original
Opponent 1) SLAO or his subordinate contested the
said reference by filing a written statement. Therefore,
this applicant was unaware about the stand taken by
SLAO as well as the impugned judgment and award.
This averment in the application on the face of it is totally
incorrect.
12. The Law & Judiciary Department as early as on 13-4-
2000 i.e. to say within the period of 15 days from the date of
the award of the Reference Court communicated its decision
to acquiesce in the decision of the Reference Court and
communicated the same to all the concerned including the
beneficiary of the acquisition. It is not the case that the
Executive Engineer did not receive the said communication.
Having received the said communication, the respondent did
not act in the matter and initiated any steps for filing the
appeals if it was really aggrieved by the decision of the
Reference Court. There is no doubt whatsoever in our mind
that the respondent made totally incorrect statement in the
application filed in the High Court. We express our
reservation as to the manner in which a public authority
conducted itself in its anxiety to somehow get the relief from
the court. In our considered opinion, incorrect statement
made in the application seeking condonation of delay itself is
sufficient to reject the application without any further inquiry
as to whether the averments made in the application reveal
sufficient cause to condone the delay. That a party taking a
false stand to get rid of the bar of limitation should not be
encouraged to get any premium on the falsehood on its part
by condoning delay. [See Binod Bihari Singh V/s. Union of
India]"
(Emphasis supplied)
5 Mr. Bohra appearing for respondent nos.2 to 9 also strongly
opposed the application and supported the stand taken by respondent no.1.
An affidavit in reply opposing the application has been filed on behalf of
respondent no.9 as well.
6 We have to also note that the impugned order dated 2 nd August
2021 has been uploaded on 3 rd August 2021 which could be the date on
which it was available for every party. Therefore, we are not inclined to
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consider the application favourably.
7 Application dismissed. Consequently, appeal also stands
dismissed.
(RAJESH S. PATIL, J.) (K. R. SHRIRAM, J.)
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