Bombay High Court
Nnp Buildcon Private Limited vs Reena Khandelwal on 19 January, 2024
Author: Sandeep V. Marne
Bench: Sandeep V. Marne
2024:BHC-AS:3323
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
INTERIM APPLICATION NO.706 OF 2024
IN
SECOND APPEAL (STAMP) NO.1816 OF 2024
NNP BUILDCON PRIVATE
LIMITED ...Appellant/Applicant
V/S
NTIN SONI ....Respondent
WITH
INTERIM APPLICATION NO.707 OF 2024
IN
SECOND APPEAL (STAMP) NO.1817 OF 2024
NNP BUILDCON PRIVATE
LIMITED ....Appellant/Applicant
V/S
REENA KHANDELWAL ....Respondent
...
Mr. Sharan Jagtiani, Senior Advocate, Mr. Akshay Doctor, Mr. Rishir Daulat,
Ms. Rhia Mehta, Ms. Shruti Shirke for the Appellant/Applicant.
Mr. Omkar Kudale a/w Mr. Nikhil Dongre and Mr. Abhisek Wakhle for
Respondent.
...
CORAM: SANDEEP V. MARNE, J.
DATE : JANUARY 19, 2024.
P.C.:
1 The Interim Applications are filed seeking condonation of delay of
280 days in filing the Appeals.
2 The order of the MAHARERA Appellate Tribunal (Tribunal) which
is impugned in the Second Appeals is passed on 6 February 2023. The
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order of the Tribunal directs the Appellant to refund the amounts paid by
the Respondent/s together with interest. In the Interim Applications, it is
pleaded by the Applicant that after passing of order by the Tribunal,
settlement talks ensued between the parties, on account of which, the
Applicant was under bona-fide impression that all 19 complainants were
likely to settle the disputes.
3 Mr. Jagtiani, the learned Senior Advocate appearing for the
Applicant would submit that out of the total 19 complainants before the
Tribunal, 8 complainants have already settled the disputes with the
Applicant. That the Appeals were required to be filed only on account of
settlement not fructifying in respect of the rest 11 complainants.
Mr. Jagtiani would invite my attention to the order passed by the
Tribunal in execution proceedings on 8 January 2024, which evidences
the factum of ongoing settlement between the parties.
4 Mr. Kudale, the learned Counsel appearing for the Respondent/s on
the other hand would dispute the submission of Mr. Jagtiani that 8
complainants have already settled their disputes. According to Mr.
Kudale, only 4 complainants are in the process of partial settlement with
the Applicant. That even qua those 4 complainants, full amounts are yet
to be paid by the Applicant to them, which is recorded by the Tribunal in
the order dated 8 January 2024. Mr. Kudale would submit that mere talks
of settlement cannot be treated as sufficient cause for condonation of
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inordinate delay of 280 days in filing the Appeals. In support of his
contentions Mr. Kudale would rely upon judgments of this Court in Victor
Albuquerque vs. Saraswat Co-operative Bank Ltd BLR 1998 Vol.100 (2)
395 and Delhi High Court in New Delhi Television Limited vs. M.J. Akbar,
2018 (170) DRJ 339.
5 I have considered the submissions canvassed by the learned
Counsel appearing for the parties. Though the factum of settlement talks
between 19 complainants and the Applicant are sought to be disputed by
Mr. Kudale, paragraph 2 of the order passed by the Maharera Appellate
Tribunal on 8 January 2024 records thus:
"2) Advocate Mr. Omkar Kudale appearing for Applicants submits that
settlement talks have failed and even though the judgment has been
passed last year, only in four matters namely in sr. nos.3, 4, 6 and 16
some amounts have been refunded. Still the balance amounts are yet to
be paid by Non-applicant in the remaining matters, not even a single
penny has been paid."
6 Thus from the order passed by the Tribunal on 8 January 2024, it
appears that the settlement talks between the parties were going on till 8
January 2024. There appears to be some degree of dispute between the
learned Counsel appearing for the rival parties about the exact number of
complainants with whom the settlement has ultimately fructified.
According to Mr. Jagtiani, 8 complainants have settled the disputes
whereas Mr. Kudale submit that only 4 complainants are in the process of
settling the disputes and that even their disputes are not fully settled on
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account of only part payment being made to them. Be that as it may, the
process of settlement talks were indeed going on between the Applicant
and all 19 complainants which is apparent from specific findings
recorded by the Tribunal in paragraph 2 of the order dated 8 January
2024. Whether 8 or 4, there appears to be some success in the settlement
talks, where some of the complainants have apparently settled their
disputes with the Applicant. According to Mr. Jagtiani 3 complainants
have already executed supplementary agreements with the Applicant
agreeing upon fresh terms for purchase of their respective flats.
According to Mr. Jagtiani, the said 3 complainants have already been
delivered possession of their respective flats. He would further submit
that 3 complainants have already executed cancellation deeds by
accepting the entire payment due to them under the cancellation deed.
He would further submit that 2 more complainants are in the process of
executing cancellation deeds with the Applicant. The above events
undoubtedly demonstrate that the parties were negotiating settlement
with the Developer. It appears that after the process of negotiations 11
complainants are not willing to enter into any settlement with the
Developer. Therefore the cause for delay in filing the Appeals, as pleaded,
cannot be rejected.
7 Mr. Kudale's reliance on the judgments of this Court in Victor
Albuquerque (supra) is misplaced as the judgment would have no
application to the facts of the present case. In that case, this Court
refused to believe mere settlement talks not yielding to any result to be a
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sufficient ground for condonation of delay in filing the Appeals. In
paragraph 8 of the judgment, this Court has recorded that settlement
attempts were made between the parties in the past as well and that the
settlement process initiated after passing of the decree was not a new
phenomenon. It is in the light of those peculiar facts that this Court
refused to accept settlement talks as a sufficient cause for condonation of
delay. In the present case, settlement talks with 19 complainants have
yielded success in respect of 8 of them.
8 In the judgment of Delhi High Court in New Delhi Television
Limited (supra), the issue was about condonation of delay in grant of
opportunity for filing of Affidavit-of-evidence in pending suit. The Delhi
High Court came to the conclusion that proposed amicable settlement
was just a ruse for seeking repeated adjournments. In the present case, it
cannot be contended that reason of settlement talks is pleaded only as a
ruse set up by the Applicant when in fact the talks have fructified in
successful settlement in respect of 8 complainants. In my view therefore
the judgment of Delhi High Court in New Delhi Television Limited (supra)
would have no application to the facts of the present case.
9 Condonation of delay is in the realm of discretion of Court. I am
inclined to exercise discretion in favour of Applicant considering the
unique facts and circumstances of the case. I am therefore of the view
that sufficient cause is made out for condonation of delay of 280 days in
filing the Second Appeals.
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10 The Interim Applications are allowed. Delay in filing the Second
Appeals is condoned.
(SANDEEP V. MARNE, J.)
