ash 1 15caf-3299.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL APPLICATION NO.3299 OF 2009 IN FIRST APPEAL ST. NO.18805 OF 2009 M/s. Kotak Mahindra Bank Limited. .. Applicant. Vs CDR Kehar Singh S/o. Kartar Singh. .. Respondent -- Shri Mahesh Menon and Shri S.A. Oak i/by M/s. Mahesh Menon & Co. for the Applicant. Shri Clive D’Souza for the Respondent. -- CORAM ; A.S. OKA, J DATED : 6TH APRIL, 2011 P.C. . Heard learned counsel appearing for the parties. There is a delay of 374 days in preferring an Appeal against the decree passed by the Trial Court. It must be stated here that in terms of the order dated 11th November, 2009, the Applicant has deposited a sum of Rs. 9,97,590/- which was the amount set out in the warrant of attachment issued in execution of the decree. 2. As far as the ground for condonation of delay is concerned, it will be relevant to note what is set out in Paragraphs 4 and 8 of the Application which read thus: - ash 2 15caf-3299.09 “4. The Applicant/Appellant states that the Applicant/Appellant’s records were initially kept in a basement by the Applicant/Appellant’s office at Kalina, Mumbai. The Applicant/Appellant states that during the monsoon of the year 2008 the most of the papers and records of the Applicant/Appellant got mutilated and had become very difficult for the Applicant/Appellant to trace the file of the Respondent. The Applicant/Appellant further states that the Kalina Office ground floor, Samsung Bldg., Vinay Bhavya Complex, Kalina, Mumbai – 400 098 of the Applicant/Appellant is in low lying area and in every monsoon there is flood in the area of the said office of the Applicant/Appellant. The Applicant/Appellant states that, in any event, the file of the Respondent was not traceable and the Applicant/Appellant was in impression that the same had got mutilated. 8. The Applicant/Appellant submits that after due and diligence search, the Applicant/Appellant found a photocopy of the file of the Respondent in one of the office of the Applicant/Appellant on 13th July, 2009 at 1st Floor, Dani Corporate Park, 159 A, C.S.T. Road, Kalina, Mumbai – 400 098. The Applicant/Appellant submits that the file of the Respondent was traced when the Applicant/Appellant were in the process of shifting to their Malad (East) office at Kotak Infinity, Building No.21, Infinity Park, Off Western Express Highway, Gen. A.K. Vaidya Road, with effect from 5th July, 2009. The Applicant/Appellant submits that the Applicant/Appellant were in the process of shifting their Kalina office and many other offices to the said address at Kotak Infinity, Building No.21, Infinity Park, Off Western Express Highway, Gen. A.K. Vaidya Road (East), Mumbai.” 3. In Paragraph 6 of the said Application, there is a reference to the letter dated 26th March, 2009 and endorsement made thereon ash 3 15caf-3299.09 which suggests that there was some effort made to settle the matter. Learned counsel appearing for the Respondent (Original Plaintiff) opposed the Application by pointing out that a false statement has been made in Paragraph 4 of the said Application that there is a basement in the office of the Applicant at Kalina, Mumbai. He submitted that the statement made in Paragraph 8 of the said Application that the file of the Respondent was traced when the Applicant was in the process of shifting to its Malad East office is inconsistent with the averment made in paragraph No.4 of the Civil Application. He submitted that there is no explanation for the gross delay of 374 days. 4. In the rejoinder filed by the concerned officer of the Applicant, in Paragraph 3 thereof it is stated thus:- “3. .....In paragraph No.4 of the said application it is mentioned by the Applicant/Appellant, that the records were kept in the basement of the Applicant/Appellant, that the records were kept in the basement of the Applicant/Appellant office at Kalina, Mumbai. I say that the Applicant/Appellant office at Kalina is on the ground floor of a building “Samsung” in “Vinay Bhavya Complex, constructed in a low lying area where the ground floor of the building was below the road level of C.S.T. Road, Kalina, Mumbai – 400 098. I therefore say that what was intended to be stated by the Applicant/Appellant through the said Mr. Rahul Gangurde was that the records of the Applicant/Appellants were mutilated during the monsoon of the year, 2008, because the ground floor office of the Applicant/Appellant was in a low lying area below the said road as aforestated. I say that I have visited the Applicant’s/Appellant’s building on 25th March, 2011 and have caused to take photographs in respect of the office of the Applicant/Appellant which shows that the ground ash 4 15caf-3299.09 floor office of the Applicant/Appellant is below the road level of the C.S.T. Road, Kalina.” 5. From the photographs annexed to the said affidavit and the vouchers produced on record, it appears that the Applicant received certain amount on account of claim due to damage caused to their premises at Kalina on account of floods. There is no reason to disbelieve what is set out in Paragraph 3 of the rejoinder. The case made out in the application is that the Applicant was under an impression that as the file was not traceable, it must have been mutilated due to flood. 6. It is true that the delay is of 374 days in preferring the Appeal. However, as stated earlier, the Applicant has deposited a sum of Rs.9,97,590/-. Considering the averments made in the Application, sufficient cause is made out for condonation of delay. Considering the length of delay, the Respondent will have to be compensated by order of payment of costs. The amount of costs is quantified at Rs.15,000/-. Accordingly, the rule is made absolute in terms of prayer clause (a) subject to condition of the Applicant paying costs of Rs.15,000/- to the Respondent within a period of four weeks from today. Payment of costs will be condition precedent. ( A.S. OKA, J )