Wadhwa Group Holding Private Limited v. Vijay Choksi

Bombay HC11 Jan 2024IA/271/2024

Case brief

AI extract

What is this about?

Wadhwa Group Holding Private Ltd. v. Vijay Choksi & anr.; High Court of Judicature at Bombay, Civil Appellate Jurisdiction; Sandeep V. Marne, J.; 16 February 2024; Interim Application No. 271 of 2024 in Second Appeal (Lodg.) No. 21842 of 2023; condonation of delay; MahaRERA Appellate Tribunal orders dated 18 October 2022 and 9 February 2023; Section 44(4) Real Estate (Regulation and Development) Act 2016; Rule 14 E-filing Rules High Court of Bombay 2022; limitation from date of order vs date of knowledge; e-filing date 18 April 2023 vs 10 August 2023; affidavit-in-reply admission; advocate absent at hearing; delay not inordinate; appeal lodged on e-filing portal.

What did the court decide?

Delay in filing the Second Appeal condoned; Interim Application allowed and disposed of. ¶¶23

Wadhwa Group Holding Private Limited vs Vijay Choksi — Bombay HC (2024) — LawSathi Research

What the court decided

AI extract

Outcome

Delay in filing the Second Appeal condoned; Interim Application allowed and disposed of.

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Issue for consideration

Whether the delay in challenging the MahaRERA Appellate Tribunal orders dated 18 October 2022 and 9 February 2023 is inordinate and whether it should be condoned. +2 more

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Court's answer

The delay in challenging the MahaRERA Appellate Tribunal orders was held not inordinate and was condoned; the Interim Application was allowed and disposed of.

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Ratio / Principle

Following Respondent No.1's own admission in his affidavit-in-reply, the Second Appeal was directed to be treated as lodged on the e-filing portal of the Court on 18 April 2023; the Court declined to delve deeper into the controversy about the exact date of e-filing (10 August 2023 on the acknowledgment).

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Key takeaways

Considering that the Applicant had filed written submissions but its advocate was absent when the Appeal was heard before the Tribunal - a possible explanation for the Applicant's lack of knowledge of the order - and the explanation pleaded in the application, the Court condoned the delay as not inordinate after reckoning both possible computations (85 days from the date of knowledge; 122 days from the date of the order). The Court did not adjudicate the Section 44(4) RERA communication-of-orders point so as to fix the commencement of limitation.ratio¶¶20

Detailed headnote1 paragraphs

Bombay High Court (Civil Appellate Jurisdiction), Sandeep V. Marne, J., 16 February 2024 - Interim Application No. 271 of 2024 in Second Appeal (Lodg.) No. 21842 of 2023 (Wadhwa Group Holding Private Ltd. v. Vijay Choksi & anr.). Condonation of delay sought in challenging two orders of the MahaRERA Appellate Tribunal dated 18 October 2022 and 9 February 2023. Respondents disputed computation of limitation from the Applicant's date of knowledge, the Applicant invoking Section 44(4) RERA under which Tribunal orders are required to be communicated to parties; Respondent No.1 further contended, relying on the Registry acknowledgment and Rule 14 of the E-filing Rules of the High Court of Bombay, 2022, that the Appeal was lodged on 10 August 2023 and not 18 April 2023. Relying on Respondent No.1's own admission in his affidavit-in-reply, the Court treated the Appeal as lodged on the e-filing portal on 18 April 2023. Noting that the Applicant's advocate had not remained present when the Appeal was heard before the Tribunal - possibly explaining the Applicant's ignorance of the order - and considering the explanation pleaded, the delay (85 days computed from knowledge; 122 days computed from the date of the order) was held not inordinate and was condoned. Interim Application allowed and disposed of.

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Neeta Sawant 1/4 906-IA-271-2024--2023.docx

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16 February 2024

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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INTERIM APPLICATION NO. 271 OF 2024 IN

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SECOND APPEAL (LODG.) NO. 21842 OF 2023

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Wadhwa Group Holding Private Ltd. ...Applicant V/s.

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Vijay Choksi & anr.

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...Respondents

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Mr. Naushad Engineer with Mr. Chirag Kamdar, Mr. Abir Patel and Ms. Lavina Bhargava i/by. M/s. Wadia Ghandy & Co., for the Appellant.

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Mr. Ashish Kamat , Senior Advocate with Mr. Vikram Garewal, Mr. Sagar Deb, Mr. Amani i/by. Mr. Anmol Bartaria, for Respondent No.1.

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CORAM : SANDEEP V. MARNE, J. DATED : 16 February 2024.

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P.C. :

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This application is filed seeking condonation of delay of 85 days in challenging the order dated 18 October 2022 of MahaRERA Appellate Tribunal and 4 days in challenging the order of MahaRERA Appellate Tribunal passed on 9 February 2023. There is some dispute amongst the parties about the exact number of days of delay in filing the Appeal. The dispute arises on account of two factors. Firstly, the Respondents dispute that the limitation can be computed from the date of acquisition of knowledge of the impugned orders passed by the Appellant. Secondly, the Respondent No.1 has sought to suggest that the Appeal has infact been lodged in this Court on 10 August 2023 and not

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Neeta Sawant 2/4 906-IA-271-2024--2023.docx 16 February 2024

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on 18 April 2023 and therefore the delay will have to be computed upto 10 August 2023. On the other hand, it is the contention of the Applicant that knowledge about passing of Order dated 18 October 2022 was acquired by it on 24 November 2022 and therefore the delay in challenging that order is only of 85 days. On the other hand, if the delay is counted from the date of passing of order dated 18 October 2022, the delay would be 122 days. Similarly, in respect of challenge to the Order 9 February 2023, the date of acquisition of knowledge by the Applicant is stated as 13 February 2023 resulting in delay of only 4 days in filing the Appeal. However, if the limitation is computed from the date of passing of Order dated 9 February 2023, the delay would be 8 days.

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Mr. Engineer, the learned counsel appearing for the Applicant would place reliance on sub-section (4) of Section 44 of the Real Estate (Regulation and Development) Act, 2016 ( RERA ) under which, according to Mr. Engineer, orders passed by the Tribunal are required to be communicated to the parties. He would therefore submit that since no communication of the orders to the Applicant was done by the Registry of the Appellate Tribunal, the limitation must be computed from the date of acquisition of knowledge about passing of the orders.

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So far as the controversy with regard to the exact date of filing of the Appeal is concerned, Mr. Kamat, the learned senior Advocate appearing for the Respondent No.1 has placed reliance on the acknowledgment issued by the Registry of this Court about lodging of the Appeal. According to Mr. Kamat, the e-filing date on the printout is indicated as ‘10 August 2023’ and therefore the date of filing must be

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Neeta Sawant 3/4 906-IA-271-2024--2023.docx 16 February 2024

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treated as 10 August 2023. Reliance in this regard is placed on Rule 14 of the E-filing Rules of the High Court of Bombay, 2022. Mr. Engineer, on the other hand, would submit that the Appeal was infact lodged on 18 April 2023. However after clearance of objections with regard to the E- filing portal, the final e-filing date is reflected as 10 August 2023. He would invite my attention to the specific admission on the part of the Respondent No.1 in his Affidavit-in reply about the date of filing of Appeal as 18 April 2023. Since the Respondent No.1 has admitted in his affidavit-in-reply that the Appeal has indeed been filed on 18 April 2023, I do not wish to delve deeper into the controversy about the exact date of e-filing of the Appeal. I am therefore of the view that the Appeal will have to be treated as having been lodged on the e-filing portal of this Court on 18 April 2023.

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If the delay is computed from the date of acquisition of knowledge by the Applicant, the same is 85 days, whereas, if the same is computed from the date of passing of Order dated 18 April 2023, the same is 122 days. It appears that though the Applicant filed written submissions before the Appellate Tribunal, his advocate did not remain present when the Appeal was actually heard. This could possibly be the reason why the Applicant did not know about passing of the Order by the Appellate Tribunal. In that view of the matter as also considering the explanation pleaded in the application, I am of the view that the delay deserves to be condoned, as the same is not inordinate.

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Neeta Sawant 4/4 906-IA-271-2024--2023.docx

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16 February 2024

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Accordingly, the Interim Application is allowed. The delay in filing the appeal is condoned. Interim Application is disposed of.

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NEETA SHAILESH SAWANT

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SANDEEP V. MARNE, J.

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Digitally signed by NEETA SHAILESH SAWANT Date: 2024.02.17 16:24:10 +0530

Wadhwa Group Holding Private Limited v. Vijay Choksi

Case brief

What is this about?

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Wadhwa Group Holding Private Limited v. Vijay Choksi

Case brief

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