Dismissed

Namdeo Datta (Died) Lrs. Radhabai Namdeo Vaival and Others v. Maha.State Co.Op.Land Devleopment Bank Thro. Raghutamrao Neelkanthrao Chaudhary and Another

Bombay HC25 Nov 2021CA/12543/2019

Case brief

AI extract

What is this about?

The High Court of Bombay Bench at Aurangabad rejected an application seeking condonation of delay and restoration of a second appeal. The court held that the applicants' repeated failure to pay costs and prosecute the matter due to negligence precluded any leniency.

What did the court decide?

Application for condonation of delay and restoration of the Second Appeal stands rejected.

Namdeo Datta (Died) Lrs. Radhabai Namdeo Vaival and Others… — Property and Title | Bombay HC (2021)

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(1)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CIVIL APPLICATION NO.12543 OF 2019

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IN

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CIVIL APPLICATION NO.15686 OF 2011

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IN

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CIVIL APPLICATION NO.89/2004

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IN
R.C.NO.1414/2015

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in

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SECOND APPEAL ST.NO.2668/1997

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NAMDEO S/O DATTA (DIED) THROUGH L.RS.
1.RADHABAI W/O ANAMDEO VAIVAL AND ORS.

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VS

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MAHARASHTRA STATE CO-OPERATIVE LAND DEVELOPMENT
BANK THROUGH ITS LIQUIDATOR.

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----

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Mr.SP Katneshwarkar, Adv. For applicant/s;
Mr.SS Shinde, Adv. For Resp.no.1;

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Mr.PH Sukale, Adv. h/for Mr. KJ Suryawanshi, Adv.
For Resp.No.2.

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CORAM: SMT.VIBHA KANKANWADI,J.
DATE : 25th November, 2021

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PER COURT :-

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1.Present application has been filed for

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condoning delay of 1550 days caused in filing Civil
Application for restoration of Second Appeal and
re-calling of order passed by this Court on
8.4.2015.

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2.This appears to a classic case on the

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point of delay as it can be seen that though memo
of the appeal was filed in the year 1997; yet it is

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(2)

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still on stamp number and till today, so many
applications appear to have been filed for geting
the delay condoned.

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3.It is to be noted that registration of

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the Second Appeal st.No.2668/1997 was refused on
28.1.1998. Thereafter, it appears that CA No.
89/2004 was filed for condoning the delay and
setting aside the order, refusing registartion of
the Second Appeal. That application came to be
dismissed on 5.5.2008. Thereafter CA No.15686/2011
was filed for condonation of delay and restoration
of CA No.89/2004. That application was dismissed as
amount of Rs.5,000/- was not deposited as per order
passed by this Court on 8.4.2015. Now, by this
application the applicants are praying for re-call
of that order together with condonation of delay of
1550 days caused in filing the application and also
praying for restoration of the Second Appeal.

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4.Heard learned Advocates appearing for the
respective parties. In order to cut short it can be
stated that both of them have made submissions in
support of their respective contentions.

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(3)

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5.The applicants have clearly stated that
after the Second Appeal was filed, there were
office objections raised and since they were not
removed, registration of the Second Appeal stood
refused by order passed by the Additional Registrar
(Judicial) on 28.1.1998. The application that was
filed, bearing CA No.15686/2011, for restoration of
the appeal was, in fact, allowed by this Court by
imposing costs of Rs.5,000/-, to be paid within a
period of four weeks. The applicants contend that
the Advocate had informed them about the said
order, however, since they are labourers and
shifted to different places for their work, they
could not get communication from the Advocate and
after getting knowledge of the order passed by the
Court, they had tried their level best to collect
amount and, therefore, there is delay. The said
delay is unintentional as per the contention of the
applicants.

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6.Interesting point to be noted is that, as
earlier stated, though the Second Appeal was filed
in the year 1997, it appears to have not been
prosecuted properly and the applicants never took

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(4)

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proper interest in prosecuting the same. There was
delay in getting the order, passed by the learned
Registrar (Judicial), set aside and also
restoration. At that time, it was 1290 days when
CA No.15686/2011 was filed to restore the CA No.

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89/2004, which was dismissed in default. Same
reasons cannot be heard again and again. If the
applicants would have been contesting the matter
properly, they could have made arrangements and
would have kept contact with the advocate all the
times. They say that due to labour work, they had
shifted to other places. However, the details of
those shifting have not been given and, therefore,
such bare statement, that too without any proof,
cannot be accepted now. It appears that such a
statement was accepted earlier by this Court and by
imposing costs that application was allowed. In
fact, sufficient time of four weks was granted by
this Court for depositing the amount; yet that has
not been deposited. Now, the application is very
casually drafted without giving any details about
the places as to where the applicnts were during
the period of 1550 days.

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(5)

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7.When again and again same mistake is
committed, i.e. delay is caused, then it amounts to
negligence and the Courts cannot protect a
negligent litigant.

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8.The applicants are contending that father
of applicant Nos.2 to 5 had borrowed loan from
Respondent No.1-Bank to the tune of Rs.6,000/- and
charge wascreated on the suit land. The suit land
was auctioned by the Bank and Respondent No.2

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purchased the same. According to them, the
outstanding amount of the loan on the date of the
auction sale was Rs.2,400/-. They contend that the
auction was made without following due procedure.
It is now stated that Respondent No.1-Bank has gone
into liquidation. Thus, it is to be noted that the
balance amount was Rs.2,400/- for which the Second
Appeal is filed in the year 1997 and it is still
tried to be contested. The suit was filed in the

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year 1986 and was decided on 29.1.1985. The Civil
Appeal was decided by the first Appellate Court on
25.10.1996 and now when the cost was imposed on
8.4.2015 to the tune of Rs.5,000/-, it is also not
paid. This shows that the applicants are totally

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(6)

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negligent and, therefore, with this kind of
history, they do not deserve any kind of leniency,
which could have been normally shown, if reasonable
and sufficient grounds would have been shown. The

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application, therefore, stands rejected.

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(SMT. VIBHA KANKANWADI)
 JUDGE

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BDV

Namdeo Datta (Died) Lrs. Radhabai Namdeo Vaival and Others v. Maha.State Co.Op.Land Devleopment Bank Thro. Raghutamrao Neelkanthrao Chaudhary and Another

Case brief

What is this about?

What did the court decide?

Namdeo Datta (Died) Lrs. Radhabai Namdeo Vaival and Others v. Maha.State Co.Op.Land Devleopment Bank Thro. Raghutamrao Neelkanthrao Chaudhary and Another

Case brief

What is this about?

What did the court decide?

What the court decided

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