The court restored an appeal and defence dismissed for non-prosecution after belated deposit of arrears, ordering the applicant to pay interim costs of Rs.50,000 as a condition precedent.
Civil Application disposed of with recall of dismissal order and restoration of appeal and defence subject to payment of costs of 50,000 within six weeks.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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Dond
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION
CIVIL APPLICATION NO. 130 OF 2014 IN
FAMILY COURT APPEAL NO. 17 OF 2011
Mr. Nimesh C. Mehta ..Applicant. Vs. Mrs. Nita N. Mehta ..Respondent
Ms. Taubon F. Irani, for Applicant. Mrs. Sharmila V. Deshmukh for Resepondent-Original Petitioner.
CORAM: A.S. OKA &
A.S. GADKARI, JJ. DATE : 17th November 2014.
P.C.
Heard learned Counsel appearing for the Applicant and the
learned Counsel appearing for the Respondent.
2 By an order dated 14th October 2013 passed by this Court in Civil Application No.108 of 2013 taken out by the Respondent, Family Court Appeal No.1 of 2011 filed by the Applicant was dismissed for nonprosecution and the defence of the Applicant in Family Court Appeal no.17 of 2011 was ordered to be struck out.
3 The said order was passed as the Applicant failed and
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neglected to comply with his undertaking recorded in order dated 27th June 2013. A contempt notice was also issued under the said order. The said order of this Court dated 14th October 2013 was challenged by the Applicant by filing a Special Leave Petition before the Apex Court. By an order dated 17th December 2013, the Apex Court dismissed the Special Leave Petition. However, a request made by the Counsel for the Applicant to grant time of eight weeks to deposit the amount was granted by the Apex Court and a liberty was granted to the Applicant to apply this Court for reopening of his defence. Today an affidavit affirmed on 7th November 2014 filed by the Applicant has been tendered across the bar. The learned Counsel appearing for the Respondent states that though there is a gross delay on the part of the Applicant, the arrears payable as of today have been deposited by the Applicant. Her submission is that considering the conduct of the Applicant, an order of restoration of the appeal and the defence of the Applicant may not be passed.
4 We have considered the submissions. By an order dated 17th December 2013, time of 8 weeks was granted to deposit the arrears. Thus, the order of the Apex Court dated 17th December 2013 records the admitted position that the arrears were not deposited by the Applicant. Part of the amount of arrears in the sum of Rs.4,57,000/- was deposited by the
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Applicant on 10th February 2014. A sum of Rs.1,35,000/- was deposited as late as on 10th October 2014.
5 Though belatedly, the Applicant has made compliance. Therefore, the drastic order passed by this Court dismissing his appeal as well as striking out his defence in the appeal preferred by the Respondent will have to be recalled. However, the Applicant will have to compensate the Respondent. Though, drastic order passed by this Court on 14th October 2013, the arrears payable as of that date were deposited on 10th February 2014.
6 Though we are inclined to restore the appeal and defence of the Applicant, the Applicant will have to pay substantial amount by was costs to the Respondent. We accordingly quantify the costs of Rs.50,000/-.
7 Hence, we allow the Application by recalling the clauses (i) and (ii) of paragraph No.7 of the order dated 14th October 2013 passed in Civil Application No.108 of 2013 subject to Applicant paying costs of Rs.50,000/- to the Respondent within a period of six weeks from today. The payment of costs will be condition precedent. We make it clear that Clauses (iii) and (iv) of the paragraph 7 of the order dated 14th October 2013 will remain undisturbed.
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8 Civil Application is disposed of on the above terms. It will be
open for the Respondent to take out an application seeking permission for withdrawal of the amount deposited by the Applicant.
(A.S. GADKARI, J.) (A.S. OKA, J.)
2 issues framed by the court
Whether the appeal and defence are fit for restoration despite gross delay in depositing arrears.
Whether substantial costs should be imposed on the applicant as a condition for relief.
Mr. Nimesh C. Mehta
Mrs. Nita N. Mehta
A.S. OKA
A.S. GADKARI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
