Bombay High Court
Karan Sanghvi And Anr vs Paridhi Rohitkumar Shah Alias ... on 23 March, 2023
Bench: K.R. Shriram, Rajesh S. Patil
Digitally signed
2023:BHC-AS:8947-DB
by GAURI
GAURI AMIT 1/4 11.IA-1986-2023.doc
AMIT GAEKWAD
GAEKWAD Date:
2023.03.24
19:18:29 +0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
INTERIM APPLICATION NO.1986 OF 2023
IN
COMMERCIAL FIRST APPEAL (ST.) NO.21830 OF 2022
Karan Sanghvi and Anr. .....Applicants/Appellants
Vs.
Paridhi Rohitkumar Shah and Ors. .....Respondents
----
Ms. Sharon Patole for applicants.
Mr. Vinay Taliwal for respondent no.1.
----
CORAM : K. R. SHRIRAM &
RAJESH S. PATIL, JJ.
DATED : 23rd MARCH 2023
P.C. :
INTERIM APPLICATION NO.1986 OF 2023
1 The application is for condoning the delay of 100 days (as per
the first set of appeal/123 days as per the second set of appeal/123 days as
per applicants' counsel brief). The appeal is impugning a judgment passed
on 14th March 2022 by the City Civil Court, Mumbai in Commercial Suit
No.340 of 2021.
2 On 13th March 2023 we informed the counsel for applicants
that we were not happy with the explanation for the delay given in the
interim application. Applicants only state that some of their family members
were facing serious health issues which required them to contribute their
time and resources towards such family and personal commitment. Both
applicants are not related to each other and are only business partners and
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it is too much of coincidence to believe that family members of both these
applicants were having serious health issues at the same time and both
were busy contributing their time and resources towards such family and
personal commitment. Applicant no.1 also states that he had to travel
alongwith his family members and he was unable to make himself
available. The further affidavit, which is filed by applicant no.1 and
affirmed on 17th March 2023, also does not satisfactorily explain the delay.
In the said affidavit (though affidavit states we applicant no.1 and applicant
no.2, this affidavit is only signed and affirmed by applicant no.1) applicant
no.1 states that they were facing severe financial setbacks and had no
alternative but to concentrate their efforts to build and increase their
business and income through other modes. Applicant no.1 states that he
and applicant no.2 started investing and promoting their factory based in
Daman which required them to travel often to ensure smooth running of
the factory and its operations and during the months of March 2022 and
April 2022 they both were required to spend considerable time at the
factory at Daman since it was the financial year ending and they had to
finalise the accounts and pass on instructions for filing returns. Thereafter,
applicant no.1 states that applicant no.2 lost his brother on 27 th August
2021 and applicant no.2 had to travel with his family to Mathura, UP for
the first death anniversary of the late brother. A copy of the ticket is
annexed. The ticket shows date of travel is 25 th June 2022 but if it is the
first death anniversary, then it should have been in August 2022 and not
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June 2022. It is stated in the affidavit that soon after his return and it is not
mentioned when they came back, applicant no.2 and his family started
preparation for the engagement ceremony for his son scheduled in July
2022 at Ujjain, MP and in July 2022 they booked train ticket to travel to
Ujjain.
3 In our view, these are all unacceptable excuses because the
facts are available with the advocates and grounds of appeal are also
drafted by advocates.
4 The Hon'ble Apex Court in Government of Maharashtra (Water
Resources Department) represented by Executive Engineer V/s. M/s. Borse
Brothers Engineers and Contractors Pvt. Ltd. 1 has held that in a commercial
matter where the object of speedy disposal is sought to be achieved under
the Commercial Courts Act, the delay is to be condoned by way of exception
and not by way of rule. The Apex Court has stated that in a fit case in which
a party has otherwise acted bonafide and not in a negligent manner, a short
delay beyond the time prescribed can, in the discretion of the Court, be
condoned.
5 Though we may not say applicants did not act bonafide, we
would certainly say applicants were grossly negligent and in a commercial
matter, where the time prescribed is 30 days to file the appeal, 100 days is
almost more than three times the time prescribed.
1. (2021) 6 SCC 460
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6 In the circumstances, application is dismissed.
(RAJESH S. PATIL, J.) (K. R. SHRIRAM, J.)
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