( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CIVIL APPLICATION NO. 1452 OF 2009 IN SECOND APPEAL (STAMP) NO. 950 OF 2009 Sayyad Anwar Sayyed Abbas APPLICANT VERSUS Jamshed Shaikh Shabbir RESPONDENT ..... Mr. B.S. Shinde, advocate for the applicant. Mr. Swapnil Joshi, advocate holding for Mr. S.D. Kulkarni, advocate for respondent. ..... WITH CIVIL APPLICATION NO. 4212 OF 2009 IN SECOND APPEAL (STAMP) NO. 8084 OF 2009 Lukman s/o Ahmadbhai Thekiya APPLICANT VERSUS Maharashtra State Electricity Board, Nanded and others. RESPONDENTS ..... Mr. S.G. Chapalgaonkar, advocate for the applicant. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 5rd November, 2009] ( 2 ) PER COURT : 1. These are applications for condonation of delay. In Civil Application No. 1452/2009, case of the applicant is that he suffered decree in R.C.S. No. 71/2000 for specific performance of agreement of sale and desired to challenge the same by filing an appeal. There was delay in filing of the appeal because he was suffering from illness. He filed delay condonation application alongwith the appeal. The learned District Judge, however, dismissed the delay condonation application No. 15/2004, which was contested by the respondents. This order rendered by the learned District Judge on 03-03-2007 was challenged by filing writ petition No. 2436/2007. The said writ petition was heard together alongwith similar writ petitions in a group. This Court held that the writ petition was not maintainable and as such, dismissed the said writ petition vide order dated 19-09-2008. The liberty was, however, granted to take appropriate recourse as would be permissible under the law. Thereafter on 13-01-2009, this second appeal is preferred. ( 3 ) 2. The contention of the applicant is that the delay was unintentional, caused due to bonafide impression that the order passed on his delay condonation application could be challenged by filing writ petition. It is submitted that due to bonafide reasons, the applicant did not file the appeal in this Court. There was also delay due to lack of communication after dismissal of the writ petition No. 2436/2007. Consequently, the applicant sought condonation of the delay. 3. In similar application (C.A. No. 4212/2009), applicant seeks condonation of delay. He challenges decree rendered in Spl.C.S. No. 287/1994. His appeal before the learned District Judge was delayed. The delay condonation application was dismissed and, therefore, he had filed writ petition No. 668/2007. He ultimately withdrew the writ petition on 27-01-2009 in view of the common judgement rendered by this Court in other similar petitions. He lateron filed second appeal No. 914/2009. He also claims that due to bonafide impression that the writ petition was maintainable, the time was spent in litigating before this Court. ( 4 ) 4. Both the applicants seek condonation of delay in view of section 14 of the Limitation Act. Civil Application No. 1452/2009 is resisted by the respondent. However, though served, the respondents No. 1 to 3 did not appear in civil application No. 4212/2009. 5. Having heard counsel for the parties and on consideration of rival submissions, it needs to be considered whether there is sufficient cause shown by the applicants to condone the delay. Mr. Joshi submits that the delay cannot be condoned when law settled by the Apex Court in “Shyam Sundar Sarma v. Pannalal Jaiswal and others” (2005) 1 S.C.C. 436” was well-known. He would submit that the applicant in civil application No. 1452/2009 could not have bonafidely believed that the writ jurisdiction was available. He has referred to observations in “K.M. Palve v. State of Maharashtra and another” 2007 (6) Mh.L.J. 583. A Single Bench of this Court held that the application for setting aside the award of the Arbitrator could not be filed belatedly and if it was filed before a wrong forum, benefit of section 14 of the Limitation Act was not available. In “Shakti ( 5 ) Tubes Limited through Director v. State of Bihar and others” (2009) 1 S.C.C. 786, the Apex Court held that time spent in proceeding bonafide in a Court without having jurisdiction could be excluded under section 14 while computing the period of limitation. It is specifically held that the period spent in pursuing the writ petition was liable to be excluded while reckoning the limitation period. 6. The writ jurisdiction may or may not be available in view of certain fact situation. However, invoking of the writ jurisdiction could not be treated as malafide act of the applicants. It is true that knowledge of law could be attributed to the counsel for the applicants. However, that does not mean purposeful invokement of the writ jurisdiction. In case of filing of the application for setting aside the award before the wrong forum, the delay may not be explainable, in as much as the provision of section 34 (3) of the Arbitration and Conciliation Act, 1996 is explicit. However, there is no question of filing writ petition within a particular period of limitation. Once it is ( 6 ) found that not only the present applicants but some similarly situated other applicants had filed writ petitions and they were decided together by common order,it goes without saying that the applicants could have laboured under bonafide impression that the writ jurisdiction was available in order to challenge the orders of the District Court. 7. Considering the above legal position and particularly when subsequent judgement of the Apex Court in “Shaki Tubes Limited through Director v. State of Bihar and others” (supra) has clarified the legal issue involved in the matter, I am of the opinion that the time spent by the applicants in pursuing the writ petitions can be excluded while computing the limitation period. It is true that they also spent some time after the decision of the writ petitions or withdrawal thereof, as the case may be, but it is obvious that some time was required to reconcile with the further course of action and to decide about filing of the second appeal. In this view of the matter, both the applications for condonation of delay are allowed, subject to condition that each of the applicants shall ( 7 ) deposit cost of Rs. 1000/- with the Secretary of the H.C. Bar Library within period of two weeks. [ V.R. KINGAONKAR ] JUDGE NPJ/ca1452-4212-09