Now it must be noted that the Appellant has, despite an opportunity that was granted by this Court, failed to satisfactorily establish that the aforesaid document was notwithstanding the exercise of due diligence, not within its knowledge or that it could not, after the exercise of due diligence, be produced by it at the time when the decree appealed against was passed. There is an omission to make any reference to the exercise of due diligence with respect to the production of this document. Nor does the Appellant establish tht despite the exercise of due diligence, this document was not within its knowledge when the order of the Single Judge was passed. The failure to so establish, despite the earlier order dated 1 August 2012, is significant. Learned Senior Counsel appearing on behalf of the Appellant refers to the averments contained in paragraphs 2 and 3 of the further affidavit of the Appellant dated 22 August 2012. Both these averments, however, merely refer to the earlier affidavit dated 2 June 2011 and to the order of this court dated 1 August 2012. Clearly, in our view, the Appellant has failed to establish that the conditions which are prescribed in the exception carved out in Clause-(aa) have been fulfilled. That apart, it would be also necessary to note that in the reply filed by the Respondent, reliance has been placed on the provisions contained in Clause-6 of the development agreement dated 2 January 1995 under which the Respondent as an owner agreed to
