Bombay High Court
BANK OF BARODA (OLD DENA BANK)versusJAYES THAKORBHAI DESAI AND ORS
- Decided
- Disposal
- Disposed Off
- Bench
- MADHAV JAMDAR
Holding
By consent, the Court quashed the impugned order, allowed the condonation of delay, imposed costs on the petitioner, and left all substantive issues open for determination in the pending appeal.
Summary
The Bombay High Court heard a writ petition filed by Bank of Baroda (Old Dena Bank) challenging an order of the Small Causes Court that dismissed a Marji application seeking condonation of an 83‑day delay. The petitioners argued the order was illegal, while the respondents consented to its quashal and sought costs. The Court, by consent of the parties, set aside the impugned order, allowed the condonation application, and imposed a cost of Rs.1,00,000 on the petitioner payable within 15 days. It expressly clarified that it had not decided the merits of the underlying appeal and that all substantive contentions, including res judicata and constructive res judicata, remain open for determination in the pending appeal. The writ petition was disposed, and a related writ petition was adjourned to a later date for hearing after the pending appeal concludes.
Issues considered
- Whether the order dismissing the Marji application for condonation of delay is valid and legal.
- Whether the parties may raise the defence of res judicata or constructive res judicata in the pending appeal.
- Whether costs may be awarded against the petitioner in the context of the consent order.
Subjects
- writ petition
- condonation of delay
- res judicata
- constructive res judicata
- mesne profits
- small causes court
- costs
- consent order
Judgment
927-WP-11615-2025.doc
Arjun
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.11615 OF 2025
Bank of Baroda (Old Dena Bank) …Petitioner
ARJUN Versus
VITTHAL Jayesh Thakorbhai Desai & Ors. …Respondents
KUDHEKAR WITH
Digitally signed by
ARJUN VITTHAL WRIT PETITION NO.10083 OF 2025
KUDHEKAR
Date: 2026.01.14 Bank of Baroda (Erstwhile Dena Bank) …Petitioner
12:00:27 +0530
Versus
Jayesh Thakorbhai Desai & Ors. …Respondents
_______________________________________________________________
Mr. Jernold Xavier a/w Gauri Jadhav, Raj Ambekar & Anushka Kamble,
for the Petitioner in both WPs.
Mr. Vishal Thaker a/w Anjali Trivedi & Mulanshu Vora i/b V Thakers’
Advocates, for Respondent No.1.
Adv. Kashvi Ail, for Respondent No.5.
_______________________________________________________________
CORAM: MADHAV J. JAMDAR, J.
DATED: 13 JANUARY 2026
P.C.:
1. Heard Mr. Xavier, learned Counsel appearing for the Petitioner
and Mr. Thaker, learned Counsel appearing for Respondent No.1.
2. In Writ Petition No.11615 of 2025, the challenge is to the legality
and validity of the Order dated 19th April 2025 passed by the learned
Appellate Bench of the Small Causes Court at Mumbai in Marji
Application No.109 of 2024 in Appeal in Mesne Profits Application
No.19 of 2013 in TE & R Suit No.35/50 of 2006 (“impugned Order”).
By the impugned Order, the said Marji Application was dismissed.
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927-WP-11615-2025.doc
3. Perusal of the record shows that the said Marji Application was
filed seeking condonation of delay of 83 days. In Marji Application,
various reasons are set out, including that the Advocate who was
looking after the matter had left the concerned Solicitor Firm.
4. As the delay is of only 83 days, Mr. Thaker, learned Counsel for
Respondent No.1, on instructions, states that, by consent, the impugned
Order be quashed and set aside.
5. He points out that the Appeal No.42 of 2023 filed by Respondent
No.1, challenging the Order passed in Mesne Profit Application whereby
Rs.50,000/- per month has been granted by the learned Trial Court and
the same has been enhanced to Rs.65,000/- per month by Order dated
2nd January 2025 passed in said Appeal by the learned Appellate Court.
He submits that the Respondents be allowed to raise contentions
regarding the said Order in the Appeal filed by the present Petitioner
including the point regarding res-judicata/constructive res-judicata.
6. Accordingly, by consent of the parties, the following Order is
passed :-
i. Order dated 19th April 2025 passed by the learned Appellate
Bench of the Small Causes Court at Mumbai in Marji Application
No.109 of 2024 in Appeal in Mesne Profits Application No.19 of
2013 in TE & R Suit No.35/50 of 2006 is quashed and set aside
and the said Marji Application No.109 of 2024 seeking
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927-WP-11615-2025.doc
condonation of delay in filing the said Appeal is allowed, on the
condition that the Petitioner - Bank of Baroda pays an amount of
Rs.1,00,000/- as costs to Respondent No.1 - Jayesh Thakorbhai
Desai. The said costs is to be paid within a period of 15 days
from today.
ii. It is clarified that this Court has not considered the merits of the
Appeal filed by Bank of Baroda and all contentions in that behalf
are expressly kept open.
iii. In the Appeal filed by Bank of Baroda, the Respondent No.1 is at
liberty to raise the contention that the decision dated 2nd
January 2026 passed in Appeal No.42 of 2023 by the learned
Appellate Bench of the Small Causes Court will operate as res
judicata and/or constructive res judicata. The contentions to be
raised by both parties in that behalf are also expressly kept
open.
7. Accordingly, Writ Petition No.11615 of 2025 is disposed of in
above terms.
8. As far as Writ Petition No.10083 of 2025 by which the challenge
is to the legality and validity of the Judgment and Decree dated 2nd
January 2025 passed by the learned Appellate Bench of the Small
Causes Court at Mumbai in M. Appeal No.42 of 2023 in Mesne Profits
Application No.19 of 2013 in TE & R Suit No.35/50 of 2006, both the
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927-WP-11615-2025.doc
parties agree that the said Writ Petition to be heard after the disposal of
the Appeal filed by the Bank of Baroda before the Appellate Bench of
the Small Causes Court at Mumbai.
9. Accordingly, the hearing of Writ Petition No.10083 of 2025 is
adjourned to 11th January 2027.
10. Liberty to the parties to apply after the disposal of the said Appeal
filed by Bank of Baroda.
[MADHAV J. JAMDAR, J.]
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