1 THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 4412 OF 2009 IN FIRST APPEAL(ST.) NO. 26903 OF 2009 Shri Babanrao Jayram Borhade (Since deceased) through his legal heirs Vimal Baban Borhade and Ors. ....Applicants (Appellants-Org.Plaintiffs) Versus Smt Malti Dattarau Padhye & Ors. ....Respondents Shri K. K. Malpathak, Advocate for the Applicants. Shri Nikhil Karnawat, Advocate for Respondent Nos. 1 to 5. CORAM : A.P. DESHPANDE & R. V. MORE, JJ. DATE : 18th MARCH, 2010. P.C.: This is an Application by the Original Plaintiffs/Appellants seeking condonation of 220 days of delay in filing the Appeal. 2. The Appellants had filed a suit for specific performance of an agreement executed by the Respondents in favour of the Appellants. The Appellants had paid earnest money of Rs.3,50,000/-. The Trial Court though declined to grant a decree for specific performance of the 2 agreement has by partly allowing the suit, directed the Respondents to refund the earnest money together with interest @ 9% p.a.. After the passing of the decree, the Respondents have deposited the entire amount of earnest money together with interest in the Trial Court, as the Appellants did not respond to the letter written by the Respondents offering the payment. 3. The reason spelt out as a sufficient cause seeking condonation of delay is in paragraph no.3 of the application. It is stated that the husband of the Applicant No.1 was actively looking after the business of the property development. However, he expired on 19th April, 1996 and hence, the Applicant No.1 and her children, who were minor, had to litigate. It is also stated that the Applicant No.1/wife of the Original Plaintiff was looking after the proceedings and as she was ill, the Appeal could not be presented within the time prescribed. 4. The learned Counsel for the Respondents has invited our attention to the fact that the Original Plaintiff expired on 19th April, 1996 i.e. within a period of one year from the date of institution of the suit, and the suit was thereafter, contested by the present Appellants. All the Appellants were major when the suit was contested by leading evidence, so also, when the suit came to be partly decreed in the year-2008. 3 5. Having regard to the fact that since 1996 to 2008, the litigation was contested by the present Appellants, each of whom had attained majority much prior to 2008, the tender age of the Appellants in the year 1996 has no bearing, while considering the present application seeking to explain the delay caused after judgment and decree came to be passed by the Trial Court in the year 2008. It is also submitted by the learned Counsel for the Respondents that the Original Plaintiff was a developer and had only paid a sum of Rs.3,50,000/- by way of earnest money which is already returned alongwith interest by depositing it in the Trial Court. The fact that the Applicant No.1 was not keeping good health, is also, not substantiated by way of medical certificate or other documentary evidence. Having regard to the totality of the facts and circumstances, in our view, the delay of 220 days has not been satisfactorily explained and hence, the Application for condonation of delay stands rejected. 5. Needless to mention that it shall be open to the Appellants to withdraw the amount deposited by the Respondents in the Trial Court. Sd/- Sd/- (R.V. MORE, J.) (A.P. DESHPANDE, J.)