VIPUL D. SHAHversusDINESH D. SHAH KARTA OF DINESH KUMAR BABULAL (HUF)

                                                                    5-IA-3149-2023.DOC



            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   CIVIL APPELLATE JURISDICTION

             INTERIM APPLICATION NO. 3149 OF 2023
                              IN
          COMMERCIAL FIRST APPEAL (ST) NO. 24138 OF 2022


Vipul D Shah                                        ...Applicant/Appellant
    Versus
Dinesh D Shah
Karta of Dinesh Kumar Babulal (HUF)                 ...Respondent
                                _______

Mr Aseem Naphade, with Ativ Patel, Viloma Shah, Harshad Vyas, Ishita
Desai i/b AVP Partners, for Applicant/Appellant.
Mr Jagdish Nagar, for Respondent.
                                       _______

                                    CORAM:       G. S. KULKARNI &
                                                 DR. NEELA GOKHALE, JJ.

                                    DATE:        17 SEPTEMBER 2026

P.C.

1.            This     Interim     Application    has   been   filed      by     the

Applicant/Appellant seeking condonation of delay of 89 days in filing the

above Commercial First Appeal against the ex-parte judgment and order

dated 20th April 2022, passed by the Judge, City Civil Court, Mumbai in

Commercial Summary Suit No. 1340 of 2021, by which the Applicant was

directed to pay a sum of Rs.40,18,890/- along with interest at the rate of

12% p.a. on the principal outstanding amount of Rs.25,00,000/- from the

date of filing of the Suit till realisation.

2.            It is the case of the Applicant that he became aware of the said


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decree only on 29th June 2022, upon receipt of a letter dated 28 th June 2022

from the Advocates of the Respondent along with a copy of the impugned

judgment and order, since service in the Suit was stated to have been

attempted at the building “Parinee-I”, which was under construction and

unattended, particularly during the Covid-19 pandemic.

3.           The Applicant further states that upon inquiry at his office no

trace of service of the mediation notice, writ of summons or suit papers

could be found; that he approached his Advocates on 19 th July 2022; applied

for a certified copy of the proceedings on 22 nd July 2022, which was made

ready on 2nd August 2022; that the draft Appeal was thereafter prepared,

discussed and revised with his Advocates; that he fell unwell around 25 th

August 2022 and underwent surgery on 5th September 2022, followed by

two weeks’ bed rest; and that, having regard to the intervening public

holidays, the Appeal could only be finalised and notarised thereafter. It is

contended that the delay of 89 days (recorded as 100 days by way of

correction in the prayer clause) is neither wilful nor intentional and deserves

to be condoned in the interest of justice, the balance of convenience lying in

favour of the Applicant.

4.           The Respondent has opposed the Application by way of

Affidavit-in-Reply, contending that the Applicant has suppressed material

facts and not approached the Court with clean hands; that summons was in

fact duly served upon the Applicant, an affidavit of service having been filed

before the Trial Court on 24 th January 2022, pursuant to which the suit


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proceeded ex-parte on 25th February 2022 and the decree was passed on 20th

April 2022, well after the Covid-19 period relied upon by the Applicant;

that the Applicant’s own admission that his office had received the papers

demonstrates that his office was functioning and he was aware of the

proceedings; that no medical documents have been produced to substantiate

the alleged surgery dated 5th September 2022; that public and bank holidays

cannot be pleaded as a ground for delay unless the last day of limitation

itself falls on such a holiday; that the Applicant had sufficient time to file the

Appeal before expiry of limitation on 30th June 2022 but failed to do so

intentionally; and that no day-wise explanation has been furnished for the

89 days’ delay. The Respondent has accordingly prayed that the Interim

Application be dismissed with compensatory costs.

5.           Having considered the rival contentions and the pleadings on

record, it is well settled that in matters of condonation of delay, a justice-

oriented and liberal approach is ordinarily adopted, particularly where the

delay is not of such magnitude as to indicate deliberate or mala fide conduct,

and where refusal to condone the delay would result in a meritorious cause

being shut out without adjudication on merits a consequence ordinarily

graver than any prejudice that may be occasioned to the opposite side, which

can, in most cases, be compensated in costs. While the Respondent has

seriously disputed the correctness and sufficiency of the explanation offered,

it is not shown that any irreversible or irreparable prejudice, beyond being

kept out of the fruits of the ex-parte decree for the intervening period,


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                                                                         5-IA-3149-2023.DOC



  would be caused to the Respondent if the delay is condoned.

  6.                   In these circumstances the ends of justice would be met by

  condoning the delay in filing the above Commercial First Appeal, subject to

  the Applicant paying costs to the Respondent, to compensate the

  Respondent while affording the Applicant an opportunity to have the

  Appeal adjudicated on its merits.

  7.                   In the result, Interim Application No. 3149 of 2023 is allowed.

  8.                   The delay in filing Commercial First Appeal (St.) No. 24138 of

  2022 is hereby condoned, subject to the Applicant paying costs of

  Rs.25,000/- (Rupees Twenty-Five Thousand Only) to the Respondent within

  a period of two weeks from today.

  9.                   Interim Application No. 3149 of 2023 stands disposed of

  accordingly.




  (DR. NEELA GOKHALE, J.)                                    (G. S. KULKARNI, J.)


          Digitally
          signed by
          SHAMBHAVI
SHAMBHAVI NILESH
NILESH    SHIVGAN
SHIVGAN   Date:
          2026.09.24
          14:28:56
          +0530




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