AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1982 OF 2008 IN APPEAL (L) NO.273 OF 2008 IN NOTICE OF MOTION NO.2405 OF 2002 IN SUIT NO.4847 OF 2002 Noshir Talati .... Appellant Vs. Feroze Homi Duggan & Ors. .... Respondents Mr. Zubin Behramkamdin with Mr. Vivek Vashi and Ms. Anuradha Agnihotri i/b Bharucha & Partners for the appellants. Mr. Prakash Ganwani i/b Solomon & Co. for respondent 1. Mr. Amey A. Nabar with Mr. Shane Sapeco and Mr. Aziza Khatvi i/b Hariani & Co. for respondents 4 and 5. CORAM : SMT. RANJANA DESAI & K.K. TATED, JJ. DATED : 10TH DECEMBER, 2008. P.C. :- 1. Office noting shows that all the respondents have been served. Respondents 1, 4 and 5 are represented by their respective lawyers however, none appears for other respondents. AJN 2 2. This notice of motion is taken out by original defendant 2 praying that delay of approximately 1138 days in filing the appeal be condoned. 3. We have heard learned counsel appearing for the appellant/original defendant 2. We have also heard learned counsel for respondent 1. Learned counsel for the appellant submitted that sufficient cause is shown in the affidavit in support of the notice of motion. He drew our attention to order dated 2/9/2005 passed by Division Bench of this court in Notice of Motion No.2438 of 2005 in Appeal (Lodging) No.670 of 2005. It appears that the other defendants, whose defence was also struck off like that of the present appellant, have filed this appeal. Division Bench has, by its order dated 2/9/2005 made Notice of Motion No.2438 of 2005 absolute in terms of prayer clause (a) thereby condoning the delay. Learned counsel for the appellant submitted that on parity, this court may condone the delay in filing the present appeal. 4. Learned counsel for respondent 1 strenuously opposed the condonation of delay. He submitted that the conduct of defendant AJN 3 2 dis-entitles him from getting any relief from this court. He submitted that there is enormous delay in filing the appeal and there is no sufficient cause shown and, hence, the motion be dismissed. 5. In our opinion, considering the fact that by order dated 2/9/2005, this court has condoned the delay in filing the appeal which was preferred by other defendants, on parity, the delay needs to be condoned. Undoubtedly, serious grievance is made about the conduct of the present appellant and it is also pointed out to us that the delay is enormous. It is strenuously contended that there is no parity between the present appellant and the other defendants. However, in the interest of justice, we feel that the delay should be condoned by saddling the appellant with heavy costs quantified at Rs.50,000/-, for the inconvenience caused to respondent 1. We would have proceeded to give reason for this high quantum of costs and we would have dealt with the submissions of learned counsel for respondent 1 about the conduct of the appellant but for the statement made by learned counsel appearing for the appellant that no reasons be assigned for this order as the appellant is willing to pay the costs and he does not AJN 4 want to challenge this order. In view of this statement, no reasons are given in this order. Hence, the following order : 6. Delay in filing the appeal is condoned on the appellant paying costs quantified at Rs.50,000/- to respondent 1 within a period of two weeks from today. Payment of costs is condition precedent for condonation of delay. If the office is satisfied that the costs have been paid to respondent 1, office to proceed further. Notice of motion is disposed of. [SMT. RANJANA DESAI, J.] [K.K. TATED, J.]