Nasik Municipal Corp vs M/S R.M. Bhandari & Anr

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/-.

5. 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 limitation.

7. 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.

12. Considering the reason for the delay in depositing the cost, as noticed earlier, the High Court allowed the Writ Petition No.1077 of 2010 vide order dated 03.05.2010 and restored the Special Darkhast No.49 of 2002 subject to the payment of cost of Rs. 25,000/- to the respondents within a period of eight weeks from the date of the order. The appellant stated that the copy of the order dated 03.05.2010 was received in the office of its Legal Department on 12.05.2010 and the Accounts Department gave its approval for the payment of cost on 26.05.2010. The Legal Department thereafter prepared voucher/bill for the amount of Rs.25,000/- for being paid in the name of Civil Judge (Senior Division), Nashik and the same was approved on 03.06.2010 and after completing the procedural formalities, the Accounts Department issued the cheque on 15.06.2010. It is further averred that the applications were presented before the executing court to accept the cheque on 30.06.2010 and the said applications were dismissed interalia holding that the time limit granted by the High Court was over on 28.06.2010 and the executing court had no power to extend the time granted by the High Court. The executing court was correct in saying that it could not extend time for depositing the cost as the same had been stipulated by the High Court. The High Court has declined to extend the time mainly on the ground that the SLP(C) No.21975 of 2010 filed by the respondents was dismissed as withdrawn and that the respondents have lost their right to challenge the order passed by the Court in Writ Petition No.1077 of 2010. The High Court while declining to enlarge the time to deposit the cost neither took into consideration the sequence of dates and events stated by the appellant-corporation nor the explanation offered by the appellant- corporation for the delay in depositing the amount. This, in our view, is not correct.

17. 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.

18. In the result, the impugned order is set aside and this appeal is allowed. The appellant-corporation shall deposit the cost of Rs.25,000/- as directed by the High Court in Writ Petition No.1077 of 2010 within a period of four weeks from today and on such deposit, Special Darkhast No.49 of 2002 shall stand restored and the same shall be proceeded with in accordance with law. The respondents are at liberty to have the first appeal filed by them being Appeal No.344 of 1995 restored by making an application. We make it clear that we have not expressed any opinion on the merits of the matter. In the facts and circumstances of the case, there is no order as to costs.

………………………….CJI (T.S. THAKUR) …………………………….J (R. BANUMATHI) New Delhi;

February 26, 2016