1 20-cas-994-2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION srj CIVIL APPLICATION NO. 994 OF 2010 IN SECOND APPEAL (ST).NO.5657 OF 2010 The Chief Executive Officer .. Applicant. V/s. Shri Ganapat Pandurang Vade & Others. .. Respondents Mr. P.P. Chavan i/b. M/s. Navdeep Vora & Associate for Applicant. Mr. Krishna Kore, Advocate for Respondent No. 1. Ms. V.S. Mhaispurkar, AGP for Respondent Nos. 2 and 3. CORAM:- G.S.GODBOLE, J DATED:- OCTOBER 17, 2011 P.C. 1 Heard Mr. Chavan, Advocate appearing for the Applicant, Mr. Kore, Advocate for Respondent No. 1 and Ms. Mhaispurkar, AGP for Respondent Nos. 2 and 3. 2 This Civil Application is filed for condonation of delay in 2 20-cas-994-2010 filing Second Appeal. Since the averments in the Civil Application as originally filed did not explain the delay sufficiently, liberty was given to the Applicant to file an additional affidavit. Accordingly, additional Affidavit of Jaywant Shankar Sankhe, Area Manager of Maharashtra Industrial Development Corporation has been filed. Respondent No.1 has filed an Affidavit in Reply and strongly opposed the Civil Application. As far as the Respondent Nos. 2 and 3 are concerned, they have independently filed Second Appeal St. No.99 of 2010 with Civil Application No. 660 of 2010 for condonation of delay. 3 At the outset, it is necessary to deal with the preliminary objection of Mr. Kore, learned Counsel for the Respondent No.1. Mr. Kore has submitted that even in the Appeal filed on behalf of the State Government, the Chief Executive Officer of MIDC has been shown as Appellant No.3. Hence one party cannot file 2 appeals against the same Judgment and Order. I have carefully perused the entire record of the Second Appeal filed by the Government Pleader on behalf of the State of Maharashtra and the Chief Executive Officer of MIDC. There is nothing to indicate that Government Pleader was authorized to file the Second Appeal even on behalf of the Chief Executive Officer of MIDC. There is no vakalatnama available on record to indicate the authority of the 3 20-cas-994-2010 Government Pleader to file such an Appeal. The MIDC is a statutory corporation established under the provisions of Maharashtra Industrial Development Act, 1961 and MIDC has a separate legal entity and can sue and be sued in its own name. It is therefore, clear that there is a mistake in the title of Second Appeal St. No. 99 of 2010 and Civil Application No. 660 of 2010 filed by the State Government wherein Chief Executive Officer, MIDC has been wrongly shown as Appellant No.3 instead of showing as Respondent No. 2. In view of this, the preliminary objection of Mr. Kore does not survive. 4 On merits of the controversy, Mr. Chavan has contended that at 2 stages legal opinion was taken so as to ensure that the funds of the MIDC are not spent unnecessarily. In this process which has been elaborately explained in the Application and additional affidavit there is a delay of about 362 days, which may be condoned subject to compensating the Respondent No.1 for the prejudice. 5 On the other hand, Mr. Kore, learned Counsel for the Respondent No.1 submitted that because of apathy shown by the Officer of the MIDC individual is made to suffer. He also relied on the Affidavit which is filed and contended that even on merits, there is no case made 4 20-cas-994-2010 out for condonation of delay. He relied on the latest Judgment of the Supreme Court in the case of Lanka Venkateswarlu v/s. State of Andhra Pradesh (2011) 4 SCC 363 and contended that the Supreme Court has critisized the tendency of taking a liberal approach. He submitted that a valuable right had been created in favour of the Respondent No.1 and such valuable right would be defeated if the delay is condoned. I have considered the submissions. Judgment of the Supreme Court was dealing with the case where virtually no explanation for delay has been offered and the delay had been caused only on account of the negligence by the Government Pleader. In that context the Supreme Court had set aside the order of the High Court condoning delay. 6 This is not the case here. Here the MIDC who is a statutory Corporation had explained the delay. It is no doubt true that there is some delay after a decision was taken to file appeals. However, that delay cannot be considered to be an enormous or unreasonable. Though there is no explanation of every days’ delay, sufficient explanation which deserves acceptance has been given. The prejudice caused to the Respondent No.1 will have to be however compensated by awarding substantial costs. Hence I pass following Order. 5 20-cas-994-2010 7 Civil Application is allowed subject to payment of costs of Rs. 7,500/- to be paid within a period of 7 weeks. Payment will be condition precedent and if cost is not paid to the Respondent No. 1 or is not deposited in this Court, the Civil Application stands dismissed without reference to the Court. If cost is paid or deposited as aforesaid, the Second Appeal to be numbered and listed on board as per CMIS. 8 It will also be open to pay the costs by handing over the cheques to the Advocate for the contesting Respondent No.1. (G.S. GODBOLE, J)