1 caf370.10.sxw ast IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.370 OF 2010 WITH CIVIL APPLICATION NO.371 OF 2010 IN FIRST APPEAL ST. NO.2559 OF 2010 Hiraman Sayaji Bhote & ors. ..Applicants. v/s. M/s. Prime Properties & ors. ..Respondents. Mr.S.R.Ganbavale for the applicants. Mr. P.S.Dani for respondent Nos. 1 to 4. CORAM:- A.M.KHANWILKAR & A.A.SAYED, JJ DATED :- AUGUST 10, 2010. P.C. 1. Heard Counsel for the parties. 2. By this application, it is prayed that delay of 265 days in filing of the 2 caf370.10.sxw appeal be condoned. The first ground stated is that the Applicant No.1 is a senior citizen almost around 85 years of age and was not in a position to pursue his legal remedy within time due to his ill-health. Reliance is placed on medical certificate to buttress this contention. Besides, wife of Applicant No.1 had undergone surgery sometime in December, 2009. The impugned decision is dated 20th January, 2009. The wife of Applicant No.1 underwent surgery in December, 2009. That is of no avail. No explanation is offered as to what prevented the Applicants to take necessary steps between January, 2009 to December, 2009. The specious plea taken in the present application is that the Applicant No.1 is a senior citizen. It clearly overlooks that in all four applicants are before us. No explanation whatsoever is offered as to why the Applicant Nos. 3 and 4, who are sons of the Applicant No.1 and are stated to be around 50 years of age were unable to take necessary steps during all this period. In other words, the explanation as offered is not genuine and unacceptable one. 3. Next explanation offered is that the Applicants faced financial problem during the relevant period. When called upon to state as to what was the court fee amount to be paid, it is candidly accepted that the court fee amount considering the claim was only around Rs.40,000/-. The fact 3 caf370.10.sxw remains that the applicants were pursuing other legal remedies against the respondents against the very same decree as is seen from the reply affidavit filed by the respondents. That fact is not in dispute before us. On the one hand the applicants resorted to legal remedy against the respondents during the same period. Significantly, in those proceedings, at one stage, the applicants made statement before the Court that they are willing to return the entire amount of Rs.10 Lakhs to the Respondent which was the earnest amount received by them. That presupposes that the applicants had sufficient financial capability to pay atleast court fee amount of around Rs. 40,000/- and pursue the present appeal. In that sense, plea taken by the applicants about the lack of funds is false to their own knowledge. 4. Considering the above, no just cause is made out for condoning delay of 265 days. On the other hand, we are of the opinion that the Applicants merely wanted to protract the proceedings and enjoy the earnest money paid by the Respondents to the applicants at the time of execution of the suit agreement, which was to the extent of 50% of the consideration amount. In the circumstances, no interference is warranted. Hence, Civil Application for condonation in filing appeal is dismissed. 4 caf370.10.sxw 5. In view of dismissal of the civil application for condonation of delay, nothing survives for consideration in the Civil Application for stay. The same is disposed of accordingly. The Appeal be consigned to the record. (A.A.SAYED (A.M.KHANWILKAR, J)