Om Som Tirth Co-Op Housing Soc. Ltd., Mumbai v. M/S Overseas Constructions Through Its Proprietor Mr. Mohammed Azam Goar

2024:BHC-AS:26220-DB Diksha Rane 11. IA 9282-24.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION INTERIM APPLICATION NO.9282 OF 2024 IN COMMERCIAL FIRST APPEAL (L) NO.30045 OF 2022 OM SOM TIRTH CO-OP. HOUSING SOC. LTD., MUMBAI ..APPLICANT VS.

M/S. OVERSEAS CONSTRUCTIONS THROUGH ITS PROPRIETOR MR. MOHAMMED AZAM GOAR ..RESPONDENT ------------ Adv. Mutahhar Khan i/b. Adv. R. Chhapra for appellant/applicant. Adv. Rajnikant R. Salvi i/b. Adv. Suvarna Telgote for respondent. ------------ CORAM :

A.S. CHANDURKAR & RAJESH S. PATIL, JJ DATE :

3rd JULY 2024.

ORDER (PER : RAJESH S. PATIL, J.) :

1.

This Interim Application is filed seeking condonation of delay of 216 days in filing the Commercial First Appeal. It is the case of the applicant that though in the application the delay to be condoned of 216 days is sought, however, in fact the delay is only of 154 days. 2.

The ex-parte decree was passed against the applicant (original defendant) by the Bombay City Civil Court at Dindoshi, Borivali Division, Mumbai, on 15 November 2021 i.e. during the pandemic period. The applicant got knowledge of the same only in the month

Diksha Rane 11. IA 9282-24.doc of July 2020, thereafter immediately an Appeal has been filed in this Court challenging the impugned ex-parte decree along with Interim Application for condonation of delay. It is submitted that the applicant (original defendant) on 25th March 2019 filed its written statement before the trial Court and on 26th June 2019 the trial Court framed issues and the matter was directed to be placed on 9th October 2019 for evidence and on subsequent date 4th December 2019 the Court hearing the matter was vacant. Thereafter, on 1st February 2020, none of the parties attended the matter, hence, the matter was adjourned to 12th March 2020.

3.

On 12th March 2020, on the request made by the respondent (plaintiff) the matter was adjourned to 19th June 2020. Subsequently, on 19th June 2020 and 6th November 2020, the Court Room was vacant due to Covid restrictions.

4.

Again on 9th March 2021, none of the parties appeared and the trial Court placed the matter for ex-parte evidence on 29th June 2021. Due to Covid-SOP, the matter was not taken up on 29th June 2021. Again on 9th July 2021, the Court directed the matter to be renumbered as Commercial Suit. The matter was adjourned to 11th October 2021. Thereafter, the matter proceeded ex-parte on 14th

Diksha Rane 11. IA 9282-24.doc October 2021 and on 20th October 2021. After that on 15th November 2021 ex-parte decree was passed in the suit.

5.

It is the case of the applicant that only when an Execution Application was served on them in July 2022, they became aware about the passing of the ex-parte decree. Mr. Khan submitted that the ex-parte decree is passed during the pandemic period. Hence, he prayed that this Court should take a lenient view and condone the delay.

6.

Mr. Salvi, learned counsel appearing for the respondent submitted that the defendant was well aware about the dates when the matter was fixed for evidence, however, without any justifiable reasons the defendant did not attend the trial Court proceedings. Therefore, the trial Court had no option but to pass an ex-parte decree.

7.

We have heard both the sides and have also considered the documents on record.

8.

The Supreme Court in the proceedings of Suo-motu Writ Petition (Civil) No. 3 of 2020 has held that in cases where the limitation period expired during the period between 15th March 2020 till 28th February 2022, notwithstanding the actual balance period of

Diksha Rane 11. IA 9282-24.doc limitation remaining, all persons shall have a limitation period of 90 days from 1st March 2022.

9.

The present proceedings are covered by the order passed by the Supreme Court in Suo-motu Writ Petition (Civil) No. 3 of 2020. Taking into consideration the facts of the present proceedings, according to us, a case is made out by the applicant which is a Cooperative Housing Society, to condone the delay in filing the Commercial First Appeal before this Court, subject to payment of cost, which is quantified at Rs.25,000/-.

10.

Hence, the Interim Application is allowed in terms of prayer clause (a) subject to the applicant paying an amount of Rs.25,000/- to the non-applicant within a period of four weeks from today. 11.

The Interim Application is accordingly disposed of. [ RAJESH S. PATIL, J. ] [ A.S. CHANDURKAR, J. ]