1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO. 4996 OF 2009 IN SECOND APPEAL STAMP NO. 9104 OF 2009 Vijaya Bank a Body Corporation Constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act 1980 and having its head office at 41/2 M. G. Road, Banglore and branch office amongst other places at Shivaji Nagar Nanded, Through its Branch Manager. .. .. Applicant Versus 1. Suleman S/o Shamsuddin Pirani, Age : 32 Years, Occu. : Business, R/o Karimabad Society, Nanded, At presently City Atlanta (America), Through its General Power of Attorney Firoz S/o Hyderali Dhamani, Age : 26 Years, Occu. : Business, R/o Karimabad Housing Society, Nanded. 2. M/s Golden Oil Industries Pvt. Ltd. Through its Managing Director, Mr. Nizar S/o Nooruddin Lalani, B-13, MIDC, Nanded .. .. Respondents Shri A. D. Kasliwal, Advocate with Shri N. N. Kapdia, Advocate for the Applicant. Shri R. N. Dhorde, Advocate h/f Shri V. R. Dhorde, Advocate for the Respondent No. 1. 2 CORAM : A. V. NIRGUDE, J. DATE : 06TH OCTOBER, 2009. ORAL ORDER : 1. This application seeks condonation of delay of 667 days in filing of the second appeal. The appellant is a Nationalized Bank which has a branch at Nanded. The respondent No. 1 had filed Regular Civil Suit No. 138/2003 for declaration and injunction against the appellant bank. It was his case that, he had mortgaged (equitable mortgage) his property as security for certain loan taken by the respondent No. 2 from the bank and that the bank had recovered the entire loan with interest. He stated that in view of the satisfaction of the loan amount, the bank should return original title deeds of his property. The suit was decreed in September, 2004. The appellant bank then filed first appeal before the District Court, Nanded in August, 2005 (Regular Civil Appeal No. 80/2005). The appeal was heard and was dismissed on 29th March, 2007. It is pertinent to note that, the bank opposed the suit even though they in the written statement admitted having recovered the loan amount. 2. It is the case of the appellant bank that, their advocate conveyed to the then Manager of Nanded branch about the dismissal of the appeal vide his letter dated 07th May, 2007. He even annexed certified copies of the judgments of the Courts below. The appellant bank stated that, after receipt of this letter and copy of judgment, the then manager did not convey this fact to his higher authority, nor he took any step for filing of second appeal. It is stated that, the then manager kept a letter on this subject addressed to higher authority 3 ready, but did not dispatch it. The bank has not mentioned the name of the branch manager. The bank stated that, said manager was then transfered from Nanded branch. The bank again did not disclose the date on which he was transfered. The bank stated that, the new manager took over the charge without mentioning as to what date the charge was taken. The bank stated that, this new manager (Again the name of new manager is not mentioned in affidavit) was not aware of passing of the judgment in Regular Civil Appeal No. 18/2005. The bank has not explained as to why the new manager could not get the information about this important case, though he took charge of the branch office. The bank stated that, this new branch manager learnt about the dismissal of the appeal only when he was served with the notice of execution of decree initiated by the respondent No. 1 on 03rd February, 2009. Thereafter, the new manager learnt about the dismissal of the appeal bearing Regular Civil Appeal No. 18/2005 and rather belatedly the present second appeal along with this civil application was filed on 22nd April, 2009. 3. The respondent No. 1 opposed this application. He asserted that, the bank had failed to show sufficient cause for condoning the delay. The bank in rejoinder stated that, the bank had taken action (rather belatedly) against the branch manager, who had failed to take further steps after receipt of the advocates letter dated 07th May, 2007. I am not inclined to discuss the merits of the case at this stage. It is necessary for me to examine the merits of the application. The reasons mentioned for coming belatedly to this Court are not 4 convincing at all. I cannot ignore the magnitude of the market value of the subject matter of the suit. The respondent No. 1 is trying to get back his property which is said to be worth Rs. 25,00,000/-. Though the suit was not filed for redemption, the effect of the judgment and decree is that the respondent No. 1 would get his property exonerated from the encumbrance of equitable mortgage. He wold get the title deeds of his property back from the bank. On the other hand the bank's contention is that, the borrower/respondent No. 2 still owed funds to the tune of over one crore and this liability of respondent No. 2 is secured with the mortgage of respondent No. 1's mortgaged property. Despite of this serious nature of the case, the bank offered rather lame and naive explanation saying that, though the advocate of the bank sent information along with his letter dated 07th May, 2007, the branch manager who received such information simply failed to take action. The bank is suggesting that the branch manager, who did not disclose this important event to his superiors did not tell about it to any one. The bank is trying to suggest that no other person other than the advocate and the said manager, learnt about the dismissal of the appeal till the notice of execution was served on 03rd February, 2009. This is rather surprising because, the branch manager who took over the charge from the old manager must have established a regular contact with their advocate on record who was attending their cases at Nanded Court, he must have had number of meetings with him in relation to other cases in the intervening period of about two years and despite of these meetings the new manager did not learnt about the dismissal of appeal Regular Civil 5 Appeal No. 80/2005. This is rather indigestible. Even after the bank received the notice of execution in February, 2009, the bank apparently failed to take prompt steps. They could have filed this appeal within reasonable time. With this background the bank could have and should have filed this appeal within shortest possible time. But the appeal was filed after about eleven weeks. I can not guess as to what had really happened between the bank officers and their advocates, but I say, the explanation offered by the bank is not at all convincing yet. I am still inclined to condone the delay by putting the bank to rather stiff and strict term which is commensurate to the magnitude of the value of the property involved. Taking in to account the amount which according to the bank is still outstanding against the respondent No. 1 and 2, the market value of the subject matter of the suit, the tremendous inconvenience that the Respondent No.1 would suffer and the unconvincing reasons (which are almost false) mentioned in the affidavit a cost of Rs. 50,000/- payable to the Respondent No.1 would be justifiable. On the bank deposits an amount of Rs. 50,000/- in this Court on or before 16th November, 2009 the application stands allowed. In case the amount of cost is not deposited as directed above, the application shall stand dismissed. [ A. V. NIRGUDE, J.] bsb/Oct. 09