Case: Nasik Municipal Corp Vs. M/S R.M. Bhandari

3. There has been a chequered history of litigation between the parties for about two decades leading to filing of the present appeal. The appellant being a municipal corporation had invited public tender for construction and concreting of the area from Gadage Maharaj Bridge to Rokadoba Sandwa, to which the respondents emerged as successful bidders. The respondents were to commence the work on 23.01.1990 and the same was to be completed on or before 22.10.1990. However, the respondents did not show any progress in the work and consequently the appellant-corporation withdrew the work from the respondents and allotted the same to M/s. N.H. Company Pvt. Ltd. for the purpose of getting the work completed, for which the appellant suffered an excess amount of Rs.29,76,740/-4. The appellant-corporation filed a suit being Special Civil Suit No.339 of 1991 against the respondents seeking recovery of the said amount before the Civil Judge (Senior Division), Nashik. The respondents also preferred Special Civil Suit No.171 of 1991 against the appellant for a declaration and recovery of amount before the Civil Judge (Senior Division), Nashik. The court disposed of both the suits vide common judgment dated 18.10.1994 thereby decreeing the suit of the appellant and dismissed the suit filed by the respondents. The court directed the respondents to pay an amount of Rs.29,40,366/- to the appellant alongwith interest at the rate of 18% per annum. Being aggrieved, the respondents filed the appeal being First Appeal No.344 of 1995 challenging the decree dated 18.10.1994 before the High Court of Bombay. Alongwith the appeal, the respondents also filed Civil Application No.2330 of 1995 for stay of the decree. Vide order dated 12.06.1995, the High Court granted stay of the decree on condition that the respondents will deposit the entire decretal amount before the lower court within eight weeks failing which the stay shall stand vacated automatically. The respondents did not deposit the decretal amount. Thereafter, the said First Appeal No.344 of 1995 was dismissed as withdrawn vide order dated 13.01.20095. The appellant had preferred an execution petition in Special Darkhast No.49 of 2002 for execution of the decree dated 18.10.1994. The said execution petition was dismissed for default of the decree holder vide order dated 29.07.2006. The appellant then preferred C.M.A. No.155 of 2006 on 28.08.2006 seeking restoration of the execution petition. Relying upon the judgment in Mhatarba Laxman Dongare (Dead) thr. L.Rs vs. Central Bank of India and Ors., reported in 2005 (2) ALL. M.R. 742, the executing court vide order dated 29.10.2007 declined to restore the execution petition-Special Darkhast No.49 of 2002. The appellant then preferred the second execution petition being Special Darkhast No.40 of 2008 and the same was dismissed as being barred by limitation6. The appellant challenged the said order of the executing court in Writ Petition No.6622 of 2009. While the said writ petition was pending, the appellant also filed another Writ Petition No.1077 of 2010 challenging the order dated 29.10.2007 passed by the executing court rejecting the appellants application for restoration of the earlier Special Darkhast No.49 of 2002. Both the writ petitions were disposed of by the High Court by the common judgment dated 03.05.2010 and the High Court allowed the writ petition No.1077 of 2010 and the order dated 29.10.2007 passed by the executing court was set aside and Special Darkhast No.49 of 2002 was restored. However, the High Court imposed the cost of Rs.25,000/- upon the appellant as a condition precedent for restoration of the execution petition. Challenging the said order dated 03.05.2010, respondents preferred SLP (C) No.21975 of 2010 before this Court and the said SLP was dismissed as withdrawn vide order dated 16.08.20107. Pursuant to the order passed in W.P. No.1077/2010, the appellant-corporation filed applications before the executing court on 30.06.2010 requesting the court to accept the cost of Rs.25,000/- and to restore Special Darkhast No.49 of 2002. Those applications were rejected by the executing court interalia stating that the time limit granted by the High Court was over on 28.06.2010 and that the court had no power to extend the time granted by the High Court. In these circumstances, the appellant preferred Civil Application No.2305 of 2010 in Writ Petition No.1077 of 2010 under Section 148 C.P.C. seeking extension of time for depositing the cost of Rs.25,000/- and the same was dismissed by the impugned order

Reasoning:
16. Coming to the finding of the High Court that the respondents have lost their right to challenge the order passed by the High Court in Writ Petition No.1077 of 2010, it is true that SLP (C) No.21975 of 2010 was dismissed by this Court on the ground that cost was not deposited by the appellant-corporation. But that was not of much significance. In the application before the High Court, what was important was that whether the appellant has made out a case for extension based on which time can be extended. From the sequence of events, in our opinion, the appellant-corporation has explained the reasons for the delay in depositing the cost and the time ought to be extended to deposit the cost17. We find substance in the submission of the respondents that since the execution petition was dismissed, the respondents have withdrawn the First Appeal No.344 of 1995 and the respondents cannot be deprived of the opportunity of maintaining a first appeal for challenging the decree passed against them. While extension of time is granted to the appellant to deposit the cost, the respondents cannot be rendered remediless and in our view, the respondents are to be given liberty to have their first appeal restored by making necessary application before the first appellate court