1 caf3387-09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION rpa CIVIL APPLICATION NO. 3387 OF 2009 ALONGWITH CIVIL APPLICATION NO. 3388 OF 2009 IN FIRST APPEAL ST. NO. 19516 OF 2009 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions and Registrar’s orders Court’s or Judge’s orders Mr. Arif Bookwala with Mr. Karl Shroff i/b. Mr. Bimal Bhabda for the applicant. Mr. Balasaheb Deshmukh for respondent No.1. CORAM : A.S.OKA, J. DATE : JUNE 8, 2011. P.C. Heard the learned senior counsel appearing for the applicant and the learned counsel appearing for the first respondent. The original second respondent Patheja Brothers Forgings & Stampings Limited (hereinafter referred to as “the plaintiff company”) filed a suit against the first respondent for specific performance of an agreement of sale of immovable property. The suit has been dismissed. The Civil Application No.3388 of 2008 has been filed by the present applicant for seeking leave to prefer an Appeal against the decree of dismissal against the suit. The Civil Application 3387 of 2009 is 2 caf3387-09 filed by the applicant for condonation of delay in preferring the Appeal. 2. The learned counsel appearing for the applicant invited attention of the Court to the Deed of Trust dated 22 nd August, 2004. He pointed out that the Trust has been formed by the unsecured creditors of the plaintiff company. He has placed reliance on a consent decree passed in a suit filed by the applicant against the said plaintiff company. The said consent decree has been passed in Appeal under which the applicant has been appointed as an Administrator of the properties mentioned in the schedule properties belonging to the company. He pointed out clause (3) of the Consent Decree. He submitted that in view of the consent decree, the applicant is entitled to prefer an Appeal against the impugned decree. The learned counsel appearing for the first respondent opposed application by submitting that the first respondent is not a party to the consent decree. He submitted that applicant Trust is not registered. His submission is that the suit property has not been mentioned as the part of the schedule properties to which reference is made in clause (4) of the decree. He submitted that the applicant has no locus to prefer an Appeal against the decree of dismissal of the suit. He pointed out that the first respondent has filed an affidavit stating that after the dismissal of the suit, the said respondent has sold the suit property to a third party. 3. After having considered the submissions, I find that a case is made out for grant of leave to prefer an Appeal. The Clause (3) of the consent 3 caf3387-09 decree read thus : “The Respondent and the Appellant agree that the Appellant be appointed as Administrator and the Appellant shall fun and utilize the assets to carry out the production in an efficient way as negotiate and settle the liabilities due to the unsecured creditors and obtain full and final discharge of the same.” 4. As stated earlier that the suit has been filed against the first respondent for specific performance of an agreement of sale in respect of the suit property. The suit has been dismissed by the impugned decree. Even the claim of damages in the sum of Rs.20,00,000/- has been dismissed and a decree for refund of consideration has been passed. The plaintiff company has been ordered to be wound up. The applicant claims to the represent the unsecured creditors of the plaintiff company. Whether specific performance of the suit agreement can be granted or not is a matter which will be considered at the time of hearing of the Appeal. Even the legality and validity of the consent decree can be considered at the time of final hearing of the Appeal. Suffice to say that leave to the Appeal deserves to be granted. 5. The applicant Trust was not a party to the suit. Reasons have been set out for delay in preferring the Appeal in paragraph Nos. 10 to 15 of the application. Sufficient cause is made out for condonation of delay. 6. Accordingly Civil Application No.3388 of 2009 is allowed in terms of 4 caf3387-09 prayer clause (a). Civil Application No.3387 of 2009 is allowed in terms of prayer clause(a). JUDGE