AO-643-2022.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

APPEAL FROM ORDER NO.643 OF 2022

WITH

INTERIM APPLICATION NO.9952 OF 2022

IN

APPEAL FROM ORDER NO.643 OF 2022

National Insurance Company Limited

Having its o�ce at National Insurance Building,

J. Tata Road, Churchgate,

Mumbai – 400 020

…Appellant/(Orig

Defendant No.1)

Versus

1. Amarchand Mansion Co-operative Housing

Society Ltd. A co-operative Society registered

under the Maharashtra Co-operative Societies

Act, 1960 having its registered o�ce at 8/11,

Wellingdon Garden Estate, Madama Cama

Road, Mumbai-400 039

2 M/s. Amar Development Corporation A �rm

carrying on business at “D” Block, Wankhede

Stadium, `D’ Road, Churchgate, Mumbai-400

020.

3. Nandkishore Lalbhai Mehta of Mumbai Indian

Inhabitant, Age 50, one of the Partners of the

Defendant/ Respondent No.2 abovenamed,

residing at Jupiter Apartments Cu�e Parade,

Colaba, Mumbai-400 005.

4. Mrs. Roshan Eruch Fanibunda, Age 51

5. Shashaina E. Fanibunda, Age 60

6. Ushaina E. Fanibunda, Age 51

All of Mumbai, Indian Inhabitants,

carrying business at Flat C-2,

Amarchand Mansion, 1

st

Floor,

Madama Cama Road, Mumbai-400 039

...Respondent

No.1/Ori. Plainti�

...Respondents

Nos. 2 to 6/

(Orig Defendant

Nos. 2 to 6)

——————

SQ Pathan 1/22

SHAGUFTA

QUTBUDDIN

PATHAN

Digitally signed

by SHAGUFTA

QUTBUDDIN

PATHAN

Date:

2026.08.03

20:00:23

+0530

AO-643-2022.doc

Mr. V. Y. Sanglikar for the Appellant/Ori. Defendant No.1

Mr. Aditya Mehta a/w Ms. Chaitra Rao for the Respondent No.1/Ori.

Plainti�

——————

CORAM : SHARMILA U. DESHMUKH, J.

DATE : AUGUST 3, 2026

ORDER :

1.The Appeal is at the instance of the original Defendant No. 1,

being aggrieved by the order dated 2

nd

February 2022 passed by the

Bombay City Civil Court at Bombay in Notice of Motion No. 4403 of

2015 in S. C. Suit No. 5680 of 1999, dismissing the Notice of Motion

seeking condonation of delay in �ling the application for setting aside

the ex parte decree dated 5

th

March, 2004. For sake of clarity, the

parties are referred to by their status before the Trial Court.

2.The Plainti� Society had instituted S. C. Suit No. 5680 of 1999

against Defendant No. 1 and Defendant Nos. 2 to 6, seeking

compliance with the statutory obligations prescribed under the

provisions of the Maharashtra Ownership Flats Act, 1963, and to

convey and assign in favour of the Plainti�, the right, title and interest

of Defendant Nos. 1 to 3 in the land being Plot Nos. 9/10 and 10/11,

situated at Wellingdon Garden Estate, admeasuring 3,191 square

meters, together with the structure standing thereon known as

Amarchand Mansion.

SQ Pathan 2/22

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3.There was no appearance by Defendant No. 1, and vide judgment

and decree dated 5

th

March 2004, the Trial Court decreed the suit. On

24

th

July 2014, the Plainti� initiated execution proceedings seeking to

execute the decree and on 13

th

October 2015, Notice of Motion No.

4403 of 2015 came to be �led seeking condonation of delay in �ling

the Notice of Motion and for setting aside the ex parte decree dated 5

th

March 2004, and that the suit be restored to �le. The application was

opposed by Plainti�, claiming that the delay of more than 3,650 days

had not been su�ciently explained. It was pleaded that the interim

applications in the suit, the plaint and the writ of summons were duly

served upon Defendant No 1. The roznama of the Trial Court shows

appearance of an Advocate on behalf of Defendant No 1. To the reply

a�davits, the Plainti� annexed all documents to show the receipt of

the same by the Defendant No 1.

4.The rejoinder of Defendant No 1 dated 28

th

June, 2016

reiterated the stand taken in the a�davit in support of notice of

motion and pleaded that the Advocate re�ected in the roznama was

not engaged by the Defendant No 1 and the appearances are not

re�ected correctly in the roznama.

5.On 9

th

November, 2016, an additional A�davit was �led by

Dayanand Narayan Pawar, Deputy Manager of Defendant No 1

Company contending that the statements made in the earlier a�davits

SQ Pathan 3/22

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were factually incorrect. It was admitted that the writ of summons was

duly served and accepted by the deponent of the A�davit. It was

contended that the deponent felt that Defendant No 1 had no role to

play in the litigation and it was a bona �de mistake not to engage an

advocate.

6.By the impugned order dated 2

nd

February 2022, the Trial Court

observed that the Roznama of the suit showed the appearance of an

advocate on behalf of Defendant No. 1 on some dates of hearing, and

the service of the interim applications upon Defendant No. 1, as well as

service of copy of the writ of summons. It held that no proper

explanation had been given by Defendant No. 1 for condonation of

huge delay. It noted that the suit was �led in the year 1999 and was

decreed in the year 2004, whereas the Notice of Motion was preferred

in the year 2015 without su�cient explanation for the delay, and

dismissed the Notice of Motion.

7.Mr. Sanglikar, learned counsel appearing for the Defendant No.1,

would submit that the a�davit in support of the Notice of Motion set

up a case about the wrong address of Defendant No. 1 and the non-

service of the writ of summons, plaint, communications etc. He submits

that thereafter upon going through the records, it was found that

service was e�ected and additional a�davit came to be �led. He

would submit that the Plainti� society stands on leasehold land which

SQ Pathan 4/22

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was vested in Defendant No. 1 vide Assignment Deed dated 6

th

May

1967, and there is no renewal of lease. He submits that resultantly, the

Plainti�’s prayer for lease does not even survive.

8.He would further submit that it was speci�cally pleaded in the

additional a�davit that they had not engaged any lawyer to represent

Defendant No. 1 in the Trial Court proceedings, and it has been

admitted that the suit summons was served upon Defendant No. 1 on

22

nd

December 2003, but was not accompanied by a copy of the plaint.

He submits that, in Writ Petition concerning the same property, the

Defendant No 1 was informed by its advocate that Defendant No. 1

had no role to play, and therefore, under a bona �de misapprehension

that Defendant No. 1 had no role to play in the Trial Court, no

appearance was caused despite receipt of the summons.

9. He would further submit that it is accepted that Defendant No.

1 made a mistake in not engaging an advocate despite service of the

writ of summons and Notice of Motion, upon a misunderstanding that

the suit was a dispute between Defendant No. 2, the builder, and the

Plainti�, and that Defendant No. 1 was only a formal party. He would

further submit that thereafter, for a period of 10 years, no steps were

taken by the Plainti�, and it was only when an application for execution

was taken out in the year 2015 that the Defendant No 1 became aware

that a decree had been passed against it, which could not be

SQ Pathan 5/22

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performed as the lease had already expired in the year 2013. He would

further point out that the Trial Court has held that the delay had not

been properly explained without considering that it is admitted by

Defendant No. 1 that there was a bona �de mistake. He submits that it

is well settled that a liberal approach is required to be adopted while

condoning the delay under Section 5 of the Limitation Act. In support,

he relies upon the following decisions:

i.N. Balakrishnan v. M. Krishnamurthy

1

ii.Mool Chandra v. Union of India

2

iii.State of Nagaland v. Lipok AO & Ors.

3

iv.Bhivchandra Shankar More v. Balu Gangaram More

4

v.New Okhla Industrial Development Authority v.

Rameshwar @ Ramesh Chandra Sharma (Dead)

Through Legal Heir & Anr.

5

vi.Perumon Bhagvathy Devaswom Perinadu Village v.

Bhargavi Amma (Dead) by L.Rs. & Ors.

6

vii.Aviation Travels Pvt. Ltd. v. Bhavesha Suresh Goradia

7

10.Per contra, Mr. Mehta, learned counsel appearing for Respondent

No. 1, would submit that the Trial Court had not accepted the

explanation tendered for the delay of almost 3,650 days, and the

1 AIR 1998 SC 3222

2 AIR 2024 SC 4046

3 AIR 2005 SC 2191 : 2005 AIR SCW 1748

4 AIR OnLine 2019 SC 2344 : AIR OnLine 2019 SC 1915

5 Civil Appeal Nos.8331-8345 of 2022 decided on 17/11/2022 (SC)

6 2008 AIR SCW 6025

7 AIR 2020 SC (Supp) 1523 : AIR OnLine 2020 SC 304

SQ Pathan 6/22

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appearance noted on behalf of Defendant No. 1 is only one part of the

order. He submits that the Trial Court has taken into consideration the

service of the writ of summons and the other documents up on

Defendant No. 1, and did not accept that there was a bona �de mistake.

He submits that the conduct of Defendant No. 1 also disentitles it to

any relief, as it initially denied receipt of the writ of summons and

other applications and only when the reply a�davit pointed out the

falsity of Defendant No. 1's case and produced material to show

service, that the additional a�davit came to be �led on 9

th

November

2016, accepting the service of the writ of summons. He submits that

not only was the writ of summons served upon the Defendant No 1,

but even the Notice of Motion, the Chamber Summons were served,

and also a communication dated 22

nd

January 2004 was addressed

intimating the next date of hearing. He further submits that the

contention that no copy of the plaint was served along with the writ of

summons is irrelevant, as the writ of summons contains a concise

statement of the prayers, and therefore Defendant No. 1 was aware of

the speci�c prayers sought against it. He would point out that one of

the grounds taken in the Appeal from Order is that the deponent of

the additional a�davit, i.e. Dayanand Pawar, has admitted his bona �de

mistake for concluding his opinion that Defendant No. 1 had no role to

play and therefore did not appoint any advocate, shows that the

SQ Pathan 7/22

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decision was consciously taken by Defendant No. 1 not to engage an

advocate and contest the proceedings, and therefore it cannot be said

to be a bona �de mistake.

11.He would further point out that in the event, the plaint was not

served upon Defendant No. 1, the deponent of additional a�davit

could not have taken a decision solely on the basis of the writ of

summons, not to defend the proceedings. He submits that Defendant

No. 1 has come with a false case that it became aware of the �ling of

the suit only after receipt of the execution application, whereas the

additional a�davit admits receipt of the writ of summons and that,

despite receiving the writ of summons, Defendant No. 1 did not seek a

copy of the plaint. He would submit that even on merits, no case is

made out to restore the suit, as since several decades the structure of

the Society has been standing on the suit land, and all property taxes,

repairs, etc. have been borne by the Society, and the execution of the

conveyance is a statutory obligation to which there can be no defence.

In support, he relies on the following decision :

i. Oswal Fats & Oils Ltd. v. Additional Commissioner

(Administration), Bareilly Division, Bareilly & Ors.

8

12.Rival contentions now fall for determination.

8 (2010) 4 SCC 728

SQ Pathan 8/22

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13.This Court in the present proceedings is concerned with the issue

as to whether the Trial Court has exercised its discretion judicially in

refusing to condone the delay of about 3,650 days. In Sheo Raj Singh

v. Union of India

9

, the Hon’ble Apex Court, spelt out the powers of

Appellate Court while judicially reviewing the discretion exercised by

the trial court in adjudication of application for condonation of delay as

under:

“30. Considering the aforementioned decisions, there

cannot be any quarrel that this Court has stepped in to ensure

that substantive rights of private parties and the State are not

defeated at the threshold simply due to technical

considerations of delay. However, these decisions

notwithstanding, we reiterate that condonation of delay being a

discretionary power available to courts, exercise of discretion

must necessarily depend upon the su�ciency of the cause

shown and the degree of acceptability of the explanation, the

length of delay being immaterial.

31. Sometimes, due to want of su�cient cause being

shown or an acceptable explanation being pro�ered, delay of

the shortest range may not be condoned whereas, in certain

other cases, delay of long periods can be condoned if the

explanation is satisfactory and acceptable. Of course, the courts

must distinguish between an ‘explanation’ and an ‘excuse’. An

‘explanation’ is designed to give someone all of the facts and lay

out the cause for something. It helps clarify the circumstances

of a particular event and allows the person to point out that

something that has happened is not his fault, if it is really not

9 (2023) 10 SCC 531

SQ Pathan 9/22

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his fault. Care must, however, be taken to distinguish an

‘explanation’ from an ‘excuse’. Although people tend to see

‘explanation’ and ‘excuse’ as the same thing and struggle to �nd

out the di�erence between the two, there is a distinction

which, though �ne, is real.

32. An “excuse” is often o�ered by a person to deny

responsibility and consequences when under attack. It is sort of

a defensive action. Calling something as just an “excuse” would

imply that the explanation pro�ered is believed not to be true.

Thus said, there is no formula that caters to all situations and,

therefore, each case for condonation of delay based on

existence or absence of su�cient cause has to be decided on its

own facts. At this stage, we cannot but lament that it is only

excuses, and not explanations, that are more often accepted for

condonation of long delays to safeguard public interest from

those hidden forces whose sole agenda is to ensure that a

meritorious claim does not reach the higher courts for

adjudication.

33. Be that as it may, it is important to bear in mind

that we are not hearing an application for condonation of delay

but sitting in appeal over a discretionary order of the High Court

granting the prayer for condonation of delay. In the case of the

former, whether to condone or not would be the only question

whereas in the latter, whether there has been proper exercise

of discretion in favour of grant of the prayer for condonation

would be the question. Law is fairly well-settled that “a court of

appeal should not ordinarily interfere with the discretion

exercised by the courts below”. If any authority is required, we

can pro�tably refer to the decision in Manjunath Anandappa v.

Tammanasa-(2003) 10 SCC 390, which in turn relied on decision

SQ Pathan 10/22

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in Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha-

(1980) 2 SCC 593 where it has been held that:

“an appellate power interferes not when the

order appealed is not right but only when it is clearly

wrong”.” (emphasis in original)

14.Keeping in mind the contours of powers of Appellate Court, the

material on record is required to be examined to ascertain whether the

discretion has been rightly exercised by the Trial Court. In the �rst

A�davit �led by one M. B. Mishra, working as the Chief Manager of

Defendant No. 1, there is clear denial to receipt of any papers and

proceedings of the suit. The pleading in the A�davit, based on the

certi�ed copy of the records made available to the Defendant No.1 on

14

th

August, 2015, is that the the A�davit of service of Plainti� shows

service at Industrial Assurance building, whereas the Defendant No. 1’s

o�ce is at a di�erent location and that D.N. Pawar was an o�cer and

not a clerk. Dealing with the a�davit of Plainti� showing service of

communication of 22

nd

January, 2004, it was averred that the UCP slip

and acknowledgment card shows wrong address and does not bear the

signature of known person. In paragraph 4, it was speci�cally pleaded

that they have carefully checked the records and they do not have on

their record (i) suit summons in the above suit and (ii) letter dated 22

nd

January, 2004 allegedly sent.

SQ Pathan 11/22

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15.The a�davit was �led on 13

th

October 2015, and on oath, the

Chief Manager deposed that upon careful checking of the records, the

Defendant No. 1 did not �nd the suit summons in their records.

16.In response, the Plainti� brought on record, the following

documents:

(I) A�davit of service showing service of Notice of Motion No 4279 of

1999 vide letter dated 11

th

October, 1999 with the stamp of Defendant

No. 1 being clearly visible dated 18

th

October, 1999, copy of

communication dated 16

th

September, 1999 intimating about the

circulation of draft Notice of Motion on 21

st

September, 1999 in Trial

Court, with the stamp of Defendant No 1 on the covering letter being

visible dated 20

th

September, 1999.

(II) A�davit of service dated 3

rd

May, 2002, in respect of service of

Chamber Summons No. 84 of 2001. The covering letter dated 29

th

January, 2001 enclosing copy of Chamber Summons bears the stamp of

Defendant No 1.

(III) A copy of the duly served writ of summons showing the signature

and rubber stamp of the Defendant No. 1 and received by D.N. Pawar,

AAO Legal on 22

nd

December, 2003.

(IV) A�davit of service showing the dispatch and receipt of letter

dated 22

nd

January, 2004 to Defendant No 1 intimating the next date

SQ Pathan 12/22

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of hearing of 16

th

February, 2004. The acknowledgment card bears the

stamp of the Defendant No 1.

17.In teeth of these documents, showing not only the service of writ

of summons but also interim applications and intimation about the

next date of hearing, the pleading on oath by the Chief Manager of

Defendant No 1 that no documents were found in the records of

Defendant No 1, is clearly a false statement on oath. The a�davit has

been �led by the Chief Manager, who holds a responsible post in the

Defendant No. 1 and without personally verifying whether the records

are available, factually incorrect statements are made on oath in a

most casual manner. An a�davit �led in the Court constitutes a solemn

statement based on facts personal to the knowledge of the deponent

and stating incorrect facts in a�davits undermine the importance of

pleadings on oath, which cannot be countenanced.

18.Faced with such overwhelming documents, the Defendant No 1

has done a complete volte face and �led an additional a�davit of the

said Dayanand Narayan Pawar, working as Deputy Manager of

Defendant No. 1 Company, who claimed to be working in the Vadodara

o�ce, stating that some of the statements in the a�davit �led on

behalf of the Defendant No. 1 were contradictory and factually

incorrect. The said Dayanand Pawar, in his additional a�davit, has

SQ Pathan 13/22

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speci�cally deposed that he has personally seen the records and has

accepted that the suit summons was served in December 2003 at their

o�ce in Royal Insurance Building. It is not the Defendant No. 1's case

that the o�ce records had travelled along with the said Dayanand

Pawar to Vadodara. The records were very much available in Mumbai

and the �rst a�davit was �led upon checking the same records. The

certi�ed copy of the papers and proceedings were obtained by the

Defendant No 1 and the endorsement on the copy of writ of summons

of Dayanand Pawar was clearly visible. A diligent litigant would have

immediately contacted Dayanand Pawar, who was still serving with

Defendant No 1 to �nd out the correct facts before �ling an A�davit

on oath. The manner in which the proceedings are handled

demonstrates clear negligence and casual approach to Court litigation.

19.In the additional a�davit, there is an explicit admission that they

made a mistake in not engaging an advocate in the suit despite service

of the writ of summons and the Notice of Motion. It is also pleaded

that it was felt that Defendant No. 1 had no role to play, which is a

bona �de mistake. The admission is not of an inadvertent mistake but

of a conscious decision by a legal o�cer not to contest the

proceedings for which the Defendant No 1 has itself to blame. It also

cannot be accepted that a copy of the plaint was not served upon

them, as without a copy of the plaint, the legal o�cer could not have

SQ Pathan 14/22

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taken a decision that Defendant No. 1 had no role to play. There is also

no explanation as to why, if the copy of the plaint was not served along

with the writ of summons, no communication was addressed to the

advocate for the Plainti� seeking a copy of the plaint.

20.Having taken a conscious decision not to participate in the

proceedings, no ground has been made out to set aside the ex parte

decree. Despite being aware of the pendency of the proceedings since

December 2003 when the writ of summons was served, and interim

applications being served, the Defendant No. 1 did not even bother to

�nd out the fate of the proceedings. It is no answer to say that

Defendant No. 1 was a formal party, as even if a party is impleaded as a

formal party, it is the duty of the litigant to keep itself abreast of the

proceedings. In the present case, the Defendant No. 1 is the National

Insurance Corporation Limited, having a full-�edged Legal Estate and

Establishment Department, which signi�es that there is a speci�cally

dedicated department for the purpose of managing the legal a�airs

and thus cannot be permitted to shrug o� the consequence of its

decision consciously taken.

21.Though being aware, the Defendant No. 1 permitted the ex parte

decree to be passed and took no steps until they were served with the

execution application in the year 2015. The inaction demonstrates

negligence on the part of Defendant No. 1 and not a bona �de error.

SQ Pathan 15/22

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The Trial Court has noted that the documents on record demonstrate

service upon Defendant No. 1 and that the usual explanation was

given. The Trial Court was not satis�ed with the explanation that it was

a bona �de mistake and exercised its discretion against the Defendant

No. 1. The Trial Court has rightly noted the relevant material in order

to arrive at a conclusion of negligence and omission on the part of

Defendant No. 1 in defending the proceedings before the Trial Court.

The suit of the year 1999 was decreed in the year 2004, and the

execution has been pending since the year 2015.

22.For the purpose of condoning the delay, the expression

"su�cient cause" cannot be interpreted in a casual manner, to accept

the apology of an entity such as the National Insurance Corporation

Limited, resulting in injustice to the Plainti� Society which has been

�ghting the litigation since the year 1999. It is well settled that the

length of delay is not a decisive factor, but the su�ciency of a

satisfactory explanation and in the present case, it is the negligence

and omission that militates against condoning the delay.

23.Though one of the reasons, why the Trial Court rejected the

application was on the ground of appearance being shown in the

roznama on behalf of the Defendant No. 1, irrespective of the said fact,

even if it is taken that there was no appearance on behalf of Defendant

No. 1, the fact remains that the writ of summons was served in the year

SQ Pathan 16/22

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2003, and despite that, Defendant No. 1 chose not to participate in the

proceedings. The Trial Court has exercised the discretion in a judicious

manner warranting no interference.

24.Dealing with the citations relied upon by Mr. Sanglikar, it is well

settled that whether the delay is required to be condoned or not will

depend upon the facts of each case, and though it is reiterated in

various judicial pronouncements that the words "su�cient cause"

under Section 5 of the Limitation Act should receive a liberal

construction, the same should not result in injustice to a party who has

succeeded in the suit and is awaiting the fruits of its decree. It is only a

diligent litigant who needs to be protected by construing liberally the

words "su�cient cause" appearing in Section 5 of the Limitation Act,

but not a litigant who is guilty of negligence and omission.

25.In the case of N. Balakrishnan v. M. Krishnamurthy (supra),

there was a delay of 883 days in �ling the application under Order IX

Rule 13. The facts in that case were that the Appellant therein had

engaged an advocate for �ling the Motion to set aside the ex parte

decree, but the advocate failed to inform him that the Application was

dismissed for default on 17

th

February 1993, and the litigant became

aware only when he received summons for execution on 5

th

July 1995

and despite paying the professional charges, the advocate did not take

any steps. It is in these facts that the Hon’ble Apex Court noted that if

SQ Pathan 17/22

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the explanation does not smack of mala �des or is not put forth as part

of a dilatory strategy, the Court must show utmost consideration in

condoning the delay.

26.In the case of Mool Chandra v. Union of India (supra), there was

a delay of 425 days in challenging the order dated 22

nd

November 2006.

The order declining to condone the delay was in the context of

challenging the punishment of stoppage of increment, and the

explanation tendered was that there was no intimation of withdrawal

of the earlier application by the then advocate, and that the order of

withdrawal did not re�ect that such withdrawal was based on any

memo duly signed by the Appellant. It is in such facts that the Court

noted that the test is whether, by reason of the delay, there is such

negligence on the part of the Petitioner so as to infer that he has given

up his claim, or whether the Petitioner had moved the Writ Court, and

the rights of third parties had come into being, which should not be

allowed to be disturbed unless there is a reasonable explanation for

the delay. It also noted the decision in the case of Commissioner,

Nagar Parishad, Bhilwara v. Labour Court, Bhilwara & Anr.

10

, that if

no negligence can be attributed to the Appellant, then necessarily the

delay which has not been condoned by the Tribunal and a�rmed by the

High Court deserves to be accepted.

10 (2009) 3 SCC 525

SQ Pathan 18/22

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27.In the case of State of Nagaland v. Lipok AO & Ors. (supra), the

Hon'ble Apex Court has noted that Section 5 is to be construed

liberally. However, at the same time, it has held that what constitutes

su�cient cause cannot be laid down as a hard and fast rule. In the

facts of that case, the Hon’ble Apex Court noted that decisions are

taken by the o�cers at a slow pace, and that the encumbered process

of pushing �les from table to table and keeping them on the table for

considerable time, causing delay, intentional or otherwise, is a routine.

In that case, it was the State of Nagaland which had approached the

Hon'ble Apex Court, and the explanation was one of bureaucratic

delay, which is not the case in the present fact, as there is a clear

admission that a decision was taken not to participate in the Trial Court

proceedings.

28.In the case of Bhivchandra Shankar More v. Balu Gangaram

More (supra), the Hon'ble Apex Court has held that a liberal

construction should be given to the expression "su�cient cause" when

there is no inaction, no negligence, nor want of bona �des on the part

of the Appellant. The facts of the present case do not warrant

condoning the delay in favour of the Appellant, as there is inaction and

sheer negligence.

29.The decision in the case of New Okhla Industrial Development

Authority v. Rameshwar @ Ramesh Chandra Sharma (Dead) Through

SQ Pathan 19/22

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Legal Heir & Anr. (supra), was in the context of the Land Acquisition

Act, where the High Court had enhanced the amount of compensation

and the Acquiring Body was saddled with the liability to pay the

statutory bene�ts and interest for 22 years. The Hon'ble Apex Court

held that the landowners shall not be entitled to any statutory

bene�ts, including the interest on the enhanced amount of

compensation during the period of delay. The Hon'ble Apex Court has,

therefore, balanced the equities in that case by granting the

substantial relief of enhancement of compensation while curtailing the

liability to pay interest for the period of delay.

30.In the case of Perumon Bhagvathy Devaswom Perinadu Village

v. Bhargavi Amma (Dead) by L.Rs. & Ors. (supra), the Hon'ble Apex

Court summarized the principles applicable while considering an

application for condonation of delay, and one of the principles is that

want of diligence or inaction can be attributed to an Appellant only

when something is required to be done by him and is not done. The

said decision, in fact, would militate against the case of the Defendant

No. 1.

31.In the case of Aviation Travels Pvt. Ltd. v. Bhavesha Suresh

Goradia (supra), in a suit for damages, an application was made for

setting aside the ex parte judgment and decree, and on the facts of

that case, it was noted that there was a dispute as to whether the

SQ Pathan 20/22

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Appellant was served or had entered appearance in the suit, which is

not the case here.

32.In the case of Oswal Fats & Oils Ltd. v. Additional Commissioner

(Administration), Bareilly Division, Bareilly & Ors. (supra), relied upon

by Mr. Mehta, the Hon'ble Apex Court has held in paragraph 20 as

under:

“20.  It is settled law that a person who approaches the court

for grant of relief, equitable or otherwise, is under a solemn

obligation to candidly disclose all the material/important

facts which have bearing on the adjudication of the issues

raised in the case. In other words, he owes a duty to the court

to bring out all the facts and refrain from

concealing/suppressing any material fact within his

knowledge or which he could have known by exercising

diligence expected of a person of ordinary prudence. If he is

found guilty of concealment of material facts or making an

attempt to pollute the pure stream of justice, the court not

only has the right but a duty to deny relief to such person.”

33.The change of stand by the Defendant No. 1, after being

confronted with the documents evidencing service of the papers and

proceedings, constitutes suppression of facts while �ling the Notice of

Motion, and therefore, even on that count, the Defendant No. 1 is

disentitled to any relief, apart from the fact that there is no su�cient

explanation for the delay. The mistake which is claimed by the

Defendant No. 1 was a conscious decision not to contest the

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proceedings and does not constitute a su�cient explanation for the

delay of almost 3,650 days.

34.In light of the above, the Appeal from Order is dismissed.

35.Nothing survives for consideration in the Interim Application.

The same stands disposed of.

[SHARMILA U. DESHMUKH, J.]

36.At this stage, request is made by Mr. Sanglikar, learned counsel

appearing for Appellant, for extension of interim relief for further

period of eight weeks from today.

37.Learned counsel appearing for Respondent opposes the request.

38. As the interim order is operating in favour of the Appellant since

the year 2022, this Court is inclined to extend it for further period of

eight weeks from today.

[SHARMILA U. DESHMUKH, J.]

SQ Pathan 22/22