1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3556 OF 2007 IN SUIT NO.3320 OF 2003 Malti Madhav Desai ...Plaintiff Vs. The Municipal Corpn., of Greater Mumbai & Ors. ...Defendants Counsel Mr. Nusrat Shah a/w. Ms. Pervin D. Contractor, Mr. A.K. Gupta Mr.V.A.Almeida , Ms. Ema Almeida and Mr. Sayed Zia for Plaintiff [Applicant in NMS.3556/07] i/b. M/s. Bhandary & Bhandary Mr.R.S . Sirshikar for Defendants 1 to 3 Mr.G.V.Murti for Defendants 4 to 6 & Applicant in NMS.164/05 CORAM: SMT.ROSHAN DALVI, J. DATED: 18 TH SEPTEMBER, 2008 P.C. 1. An auction sale for nonpayment of property taxes has been conducted by the BMC on 7th March,2003. The Plaintiff had written a letter dated 4th March, 2003 to the BMC. An endorsement came to be made by the Commissioner, Municipal Corporation, Bombay on 5th March, 2003 that if the full amount (arrears of taxes) is paid up by next week, 2 the auction sale would be postponed. The Plaintiff did nothing after that. No amount was paid up. The file was not sent to the relevant authority. The Deputy Assessor and Collector (City) received the letter with the aforesaid endorsement on 10 th March, 2003. In the meantime the auction sale took place on 7th March, 2003 as scheduled. 2. The Plaintiff did not move the Court for either stopping or further acting upon the said auction sale for a long period of time. The first action taken by the Plaintiff was to file a Writ Petition on 9th April, 2003 well after the sale was completed. An order came to be passed by this Court on 28th April, 2003 in the said Writ Petition where the statement informing the Court that the auction sale has already completed and the certificate of sale has also been issued came to be recorded. The certificate of sale has been issued on 22 nd April, 2003. Nothing was challenged. It was recorded in the said order that it was the 4th time when the property was notified for auction sale due to arrears of taxes. It was observed that it was rather too late in the day. The Plaintiff withdrew the Writ Petition. 3. Much later on 6th September, 2003 the Plaintiff filed this Suit. 3 4. No interim order was passed. The Suit has remained on the board of this Court for the last 5 years. This Notice of Motion has been taken out on 12 th September, 2007. 5. In the meantime the auction purchaser has acted as owner of the suit property. Several litigations which are pending against certain tenants in the property which is already sold to the auction purchaser are being prosecuted by the auction purchaser. 6. The Plaintiff has now applied for depositing the arrears. The application, aside from being hopelessly delayed, also lacks bonafide. The Plaintiff seeks to set the clock back. The interest of justice and demands that rights of third parties which have been created and completed 4 years ago cannot be shaken by the Court by way of an interim order. 7. The Notice of Motion is dismissed. 8. As a face saving device, the Plaintiff's Advocate now applies for expedition of the Suit. The hearing of the Suit has already commenced. The Court Commissioner has already been appointed. Affidavit of examination- in-chief of the Plaintiff is filed. The Plaintiff must make herself available for cross examination before the Commissioner. 4 The conduct of the Suit would depend upon the action taken by the Plaintiff. (SMT. ROSHAN DALVI, J.)