Bombay High Court
M/S. Vardhaman Developers Ltd. And Ors vs Mulund Swapneel Chs Ltd. And Ors on 21 January, 2020
Author: A. M. Badar
Bench: A. M. Badar
28-WP-5575-2018-J.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.5575 OF 2018
M/S. VARDHAMAN DEVELOPERS LTD.&ORS. )...PETITIONERS
V/s.
MULUND SWAPNEEL CHS LTD. AND ORS. )...RESPONDENTS
Mr.Harshad Bhadbhade i/b. Mr.Harshawardhan Salgaonkar,
Advocate for the Petitioners.
Ms.Anjali Risbud, Advocate for Respondent No.1.
Mr.S.V.Gavand, APP for the Respondent - State.
CORAM : A. M. BADAR, J.
DATE : 21st JANUARY 2020
ORAL JUDGMENT :
1 Rule. Rule made returnable forthwith. Heard finally by consent of parties.
2 By this petition, petitioners/ original accused are challenging the order dated 26th October 2018 passed by the learned Additional Sessions Judge, Greater Mumbai, thereby avk 1/7 ::: Uploaded on - 22/01/2020 ::: Downloaded on - 22/01/2020 23:51:01 ::: 28-WP-5575-2018-J.doc rejecting the Miscellaneous Application No.951 of 2018 filed by petitioners/original accused for condonation of delay in preferring revision petition challenging the order directing issuance of process against them. Petitioners are original accused in private criminal complaint bearing No.61/SW/2014 pending on the file of the learned Metropolitan Magistrate, 27 th Court, Mulund. In the said complaint, on 20th August 2016, order directing issuance of process for offences punishable under Sections 406, 409, 420, 477A, 120B of the Indian Penal Code came to be issued. Petitioners herein/ original accused along with original co- accused intended to challenge the order by preferring a revision petition before the Sessions Judge, Mumbai, and as that revision petition was barred by limitation, an application for condonation of delay came to be moved, which was ultimately rejected by the impugned order.
3 Heard the learned counsel appearing for petitioners/ original accused. He vehemently argued that reasons for delay in approaching the revisional court are set out in the application for avk 2/7 ::: Uploaded on - 22/01/2020 ::: Downloaded on - 22/01/2020 23:51:01 ::: 28-WP-5575-2018-J.doc condonation of delay, but the learned Additional Sessions Judge has taken hyper technical view of the matter and rejected the application for condonation of delay by holding that supporting documents are not filed on record.
4 As against this, the learned counsel appearing for respondent no.1/original complainant opposed the petition by contending that the delay is not properly explained. Therefore, the impugned order is correct.
5 I have considered the submissions so advanced and also perused the impugned order rejecting the application for condonation of delay. The learned Additional Sessions Judge observed that petitioners herein got knowledge of the impugned order on 5th May 2017 but they had applied for certified copy of the impugned order on 3rd February 2018 and received the same on the very same day. It is further observed that they had not filed any documents in support of their contention regarding compliance with formalities of RERA registration from May 2017 avk 3/7 ::: Uploaded on - 22/01/2020 ::: Downloaded on - 22/01/2020 23:51:01 ::: 28-WP-5575-2018-J.doc to August 2017. With this, it is further observed that conduct of petitioners herein does not appear to be serious about availing legal remedy and the same lacks bonafide.
6 In this regard, it is apposite to take note of the judgment of the Hon'ble Supreme Court in the matter of Collector Land Acquisition, Anant Nag & Another vs. Mst.Katiji & Ors. 1 wherein following principles are laid down while considering the question of condonation of delay :
1 Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2 Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
3 "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's 1 1987 AIR 1353 avk 4/7 ::: Uploaded on - 22/01/2020 ::: Downloaded on - 22/01/2020 23:51:01 ::: 28-WP-5575-2018-J.doc delay? The doctrine must be applied in a rational common sense pragmatic manner.
4 When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
5 There is no presumption that delay is occasioned
deliberately, or on account of culpable
negligence, or on account of mala fides. A
litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
6 It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
7 It is clear from the averments made in the application for condonation of delay that summons of the complaint case was served on petitioners herein on 5th May 2017 and they were avk 5/7 ::: Uploaded on - 22/01/2020 ::: Downloaded on - 22/01/2020 23:51:01 ::: 28-WP-5575-2018-J.doc directed to appear before the court on 25 th May 2017.
Submissions of the learned counsel for petitioners that after appearance before the learned trial Magistrate they received copy of the complaint from the record is not controverted by the other side. It is further averred in the application for condonation of delay that then petitioners herein obtained certified copy of the impugned order on 3rd February 2018. The revision petition was then filed in April 2018. In the interregnum, petitioners have explained in their application for condonation of delay that they were engaged in compliance of Real Estate (Regulation and Development) Act (RERA) registration. It is submitted by the learned counsel for petitioners that Maharashtra Real Estate (Regulation and Development)(Registration of real estate projects, Registration of real estate agents, rates of interest and disclosures on website) Rules, 2017 came in force in May 2017 and petitioners, who were having several projects, were busy in registration of their projects during that period. The explanation, so tendered, in the application for condonation of delay, cannot be said to be lacking bonafides or plausibility. It does reflect avk 6/7 ::: Uploaded on - 22/01/2020 ::: Downloaded on - 22/01/2020 23:51:01 ::: 28-WP-5575-2018-J.doc sufficient cause in not approaching the court within the limitation. Once sufficient cause is made out, then quantum of delay is of least importance. The primary function of the court is to adjudicate the dispute on its own merit, rather than adhering to technicalities of law. Hence, on such technical ground, the revision petition ought not to have been disposed off by rejecting the application for condonation of delay. The discretion, so exercised, by the learned Additional Sessions Judge, is arbitrary, and therefore, the impugned order deserves to be quashed and set aside. Therefore, I proceed to pass the following order :
ORDER
i) The petition is allowed by quashing and setting aside the impugned order dated 26th October 2018 rejecting the application for condonation of delay.
ii) The said application stands allowed. iii) The learned revisional court is directed to register the
revision petition and to proceed further according to law.
(A. M. BADAR, J.) avk 7/7 ::: Uploaded on - 22/01/2020 ::: Downloaded on - 22/01/2020 23:51:01 :::