IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION NOTICE NOTICE NOTICE OF MOTION NO.2776 OF 2008 OF MOTION NO.2776 OF 2008 OF MOTION NO.2776 OF 2008 IN IN IN APPEAL APPEAL APPEAL (L) NO.285 OF 2008 (L) NO.285 OF 2008 (L) NO.285 OF 2008 IN IN IN NOTICE NOTICE NOTICE OF MOTION NO.898 OF 2008 OF MOTION NO.898 OF 2008 OF MOTION NO.898 OF 2008 IN IN IN SUMMARY SUMMARY SUMMARY SUIT NO.1791 OF 1996 SUIT NO.1791 OF 1996 SUIT NO.1791 OF 1996 ALONGWITH NOTICE NOTICE NOTICE OF MOTION NO.2780 OF 2008 OF MOTION NO.2780 OF 2008 OF MOTION NO.2780 OF 2008 IN IN IN APPEAL APPEAL APPEAL (L) NO.284 OF 2008 (L) NO.284 OF 2008 (L) NO.284 OF 2008 IN IN IN NOTICE NOTICE NOTICE OF MOTION NO.1499 OF 1996 OF MOTION NO.1499 OF 1996 OF MOTION NO.1499 OF 1996 IN IN IN SUMMARY SUMMARY SUMMARY SUIT NO.1791 OF 1996 SUIT NO.1791 OF 1996 SUIT NO.1791 OF 1996 Mahesh Rajnikant Doshi ..Appellant V/s. Smt. Rashmi Pankaj Kesariya ..Respondent ....... Ms. Sheela Tambe i/by Avinash Joshi for appellant Mr. U.L. Shah for respondent ....... CORAM CORAM CORAM : SMT RANJANA DESAI & : SMT RANJANA DESAI & : SMT RANJANA DESAI & SHRI SHRI SHRI K.K.TATED, JJ. K.K.TATED, JJ. K.K.TATED, JJ. DATE DATE DATE :2ND DECEMBER, 2008 :2ND DECEMBER, 2008 :2ND DECEMBER, 2008 P.C.: 1. In Appeal (L) No.285 of 2008 the appellant who is the original defendant wants to challenge order dated : 2 : 22.4.2008 passed by learned Single Judge of this court disposing of Notice of Motion No.898 of 2007 taken out by the plaintiff for allowing him to withdraw his statements and the undertaking given to this court and recorded in the order dated 12.1.1998. Learned Single Judge disposed of the said notice of motion by directing the defendant to file an undertaking in this court within a period of 4 weeks from the date of the said order stating that negotiations for redevelopment, which were going on and on the basis of which this motion was filed, are not going through and if there is any such proposal in future either with the same developer or any other developers, he shall not either enter into any agreement with the developer or even give his consent to the society for such development without permission of this court. It was further directed that he shall further state that he shall not deal with or dispose of or create any third party rights in respect of the said flat without permission of this court. 2. Appeal (L) No.284 of 2008 is filed challenging order dated 12.1.1998 passed by learned Single Judge of this court in Notice of Motion No.1499 of 1996 taken out by the plaintiff for attachment before judgment. That notice of motion was disposed of by recording the : 3 : statement of the defendant that he has no intention to deal with or dispose of or create any third party interest in respect of said flat as he was residing therein. 3. In Appeal (L) No.285 of 2008, there is a delay of 9 days. The defendant has prayed in Notice of Motion No.2776 of 2008 that delay may be condoned. In the affidavit, it is stated that due to some personal reasons the defendant could not contact his advocate in time. In Appeal (L) No.284 of 2008, there is about 10 years i.e. 3,760 days delay. In the affidavit in support of the motion the defendent has stated that when the statement and undertaking mentioned hereinabove were given, he was not aware of the gravity thereof. He has stated that he was given wrong legal advise. It is suggested that the plaintiff realised his mistake in 2008 and he filed the appeal. 4. We have heard learned Counsel for the defendant. She submitted that the defendant has given acceptable and genuine explanation in the affidavit in support of the notice of motion and that in the interest of justice the delay be condoned. On the other hand, learned counsel for the plaintiff strenuously opposed : 4 : condonation of delay. He submitted that the explanation is not at all satisfactory. The defendant is only trying to get over the undertakings given by him and no sufficient cause is made out. 5. We find that there is some substance in the submission of learned counsel for the plaintiff. However, we feel that in the interest of justice delay should condoned after saddling the defendant with heavy costs for the inconvenience caused to the plaintiff. Hence, the following order:- O R D E R R D E R R D E R (a) Delay in filing Appeal (L) No.285 of 2008 and Appeal (L) No.284 of 2008 is condoned on the defendant depositing the costs quantified at Rs.30,000/-. Payment of costs will be condition precedent to the condonation of delay. Learned counsel for the defendant states that amount of Rs.30,000/- will be handed over in cash or a cheque of Rs.30,000/- will be sent to the advocate for the plaintiff within a period of 5 weeks from today. Needless to say that on the : 5 : plaintiff or his advocate receiving the said amount and on the defendant satisfying the office that the money is paid, delay shall stand condoned. (b) Notices of Motion are disposed of. JUDGE JUDGE JUDGE JUDGE JUDGE JUDGE