5-IA-3149-2023.DOC IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION INTERIM APPLICATION NO. 3149 OF 2023 IN COMMERCIAL FIRST APPEAL (ST) NO. 24138 OF 2022 Vipul D Shah ...Applicant/Appellant Versus Dinesh D Shah Karta of Dinesh Kumar Babulal (HUF) ...Respondent _______ Mr Aseem Naphade, with Ativ Patel, Viloma Shah, Harshad Vyas, Ishita Desai i/b AVP Partners, for Applicant/Appellant. Mr Jagdish Nagar, for Respondent. _______ CORAM: G. S. KULKARNI & DR. NEELA GOKHALE, JJ. DATE: 17 SEPTEMBER 2026 P.C. 1. This Interim Application has been filed by the Applicant/Appellant seeking condonation of delay of 89 days in filing the above Commercial First Appeal against the ex-parte judgment and order dated 20th April 2022, passed by the Judge, City Civil Court, Mumbai in Commercial Summary Suit No. 1340 of 2021, by which the Applicant was directed to pay a sum of Rs.40,18,890/- along with interest at the rate of 12% p.a. on the principal outstanding amount of Rs.25,00,000/- from the date of filing of the Suit till realisation. 2. It is the case of the Applicant that he became aware of the said Shivgan 5-IA-3149-2023.DOC decree only on 29th June 2022, upon receipt of a letter dated 28th June 2022 from the Advocates of the Respondent along with a copy of the impugned judgment and order, since service in the Suit was stated to have been attempted at the building “Parinee-I”, which was under construction and unattended, particularly during the Covid-19 pandemic. 3. The Applicant further states that upon inquiry at his office no trace of service of the mediation notice, writ of summons or suit papers could be found; that he approached his Advocates on 19th July 2022; applied for a certified copy of the proceedings on 22nd July 2022, which was made ready on 2nd August 2022; that the draft Appeal was thereafter prepared, discussed and revised with his Advocates; that he fell unwell around 25th August 2022 and underwent surgery on 5th September 2022, followed by two weeks’ bed rest; and that, having regard to the intervening public holidays, the Appeal could only be finalised and notarised thereafter. It is contended that the delay of 89 days (recorded as 100 days by way of correction in the prayer clause) is neither wilful nor intentional and deserves to be condoned in the interest of justice, the balance of convenience lying in favour of the Applicant. 4. The Respondent has opposed the Application by way of Affidavit-in-Reply, contending that the Applicant has suppressed material facts and not approached the Court with clean hands; that summons was in fact duly served upon the Applicant, an affidavit of service having been filed before the Trial Court on 24th January 2022, pursuant to which the suit Shivgan 5-IA-3149-2023.DOC proceeded ex-parte on 25th February 2022 and the decree was passed on 20th April 2022, well after the Covid-19 period relied upon by the Applicant; that the Applicant’s own admission that his office had received the papers demonstrates that his office was functioning and he was aware of the proceedings; that no medical documents have been produced to substantiate the alleged surgery dated 5th September 2022; that public and bank holidays cannot be pleaded as a ground for delay unless the last day of limitation itself falls on such a holiday; that the Applicant had sufficient time to file the Appeal before expiry of limitation on 30th June 2022 but failed to do so intentionally; and that no day-wise explanation has been furnished for the 89 days’ delay. The Respondent has accordingly prayed that the Interim Application be dismissed with compensatory costs. 5. Having considered the rival contentions and the pleadings on record, it is well settled that in matters of condonation of delay, a justice- oriented and liberal approach is ordinarily adopted, particularly where the delay is not of such magnitude as to indicate deliberate or mala fide conduct, and where refusal to condone the delay would result in a meritorious cause being shut out without adjudication on merits a consequence ordinarily graver than any prejudice that may be occasioned to the opposite side, which can, in most cases, be compensated in costs. While the Respondent has seriously disputed the correctness and sufficiency of the explanation offered, it is not shown that any irreversible or irreparable prejudice, beyond being kept out of the fruits of the ex-parte decree for the intervening period, Shivgan 5-IA-3149-2023.DOC would be caused to the Respondent if the delay is condoned. 6. In these circumstances the ends of justice would be met by condoning the delay in filing the above Commercial First Appeal, subject to the Applicant paying costs to the Respondent, to compensate the Respondent while affording the Applicant an opportunity to have the Appeal adjudicated on its merits. 7. In the result, Interim Application No. 3149 of 2023 is allowed. 8. The delay in filing Commercial First Appeal (St.) No. 24138 of 2022 is hereby condoned, subject to the Applicant paying costs of Rs.25,000/- (Rupees Twenty-Five Thousand Only) to the Respondent within a period of two weeks from today. 9. Interim Application No. 3149 of 2023 stands disposed of accordingly. (DR. NEELA GOKHALE, J.) (G. S. KULKARNI, J.) Shivgan SHAMBHAVI NILESH SHIVGAN Digitally signed by SHAMBHAVI NILESH SHIVGAN Date: 2026.09.24 14:28:56 +0530