IMPORTANT POINT
Undue delay in filing written statement cannot be condoned without cogent reason.

JUDGMENT

A.K. SIKRI, J.

The present appeal is filed impugning the final judgment and order dated November 21, 2016 passed by the High Court of Judicature at Bombay in Commercial Appeal No. 33 of 2016 in Notice of Motion No. 1211 of 2015 in Suit No. 3813 of 2000 with Notice of Motion No. 1706 of 2016 in Appeal No. 420 of 2016 in Notice of Motion No. 1211 of 2015 in Suit No. 3813 of 2000, whereby the High Court has dismissed the appeal filed by the appellant challenging the order dated March 15, 2016 passed by the learned Single Judge in Notice of Motion No. 1211 of 2015 in Suit No. 3813 of 2000.

2. The Notice of Motion filed by the respondents was for condonation of delay in filing the written statement. Delay was of 15 years and 54 days (though according to the appellant it is 14 years and 166 days). The learned Single Judge condoned the delay vide order dated March 15, 2016 with a cost of Rs.5 lakhs which was ordered to be paid by the respondents to the appellant. Aggrieved by the said order condoning such an inordinate delay, the appellant preferred appeal before the Division Bench which has affirmed the order passed by the Single Judge and dismissed the appeal of the appellant.

3. The dispute between the parties is with regard to the dues allegedly payable by the respondents to the appellant of about Rs.11.9 crores with additional interest as per the particulars of claim annexed to the suit. According to the appellant and as per the arrangement between the parties, the respondents have failed and neglected deliberately with ulterior motives and mala fide intentions to refund the money or handover possession of certain flats in a building named ‘Emerald Court’ situated at Andheri (E) in Mumbai in respect of which Agreements for Sale have been executed.

4. The case set up by the appellant is somewhat like this:

(a) It may be mentioned that respondent Nos. 1, 3 and 4 are the owners of a parcel of land admeasuring 30,262 sq. mtrs. situated at Village Kondivita, Ramkrishna Mandir Marg, Andheri (E), Mumbai (hereinafter referred to as the ‘Kondivita Plot’). Respondent No. 1 and respondent No. 2 (partner of M/s. Shree Siddhivinayak Developers Ltd.) entered into an agreement whereby respondent No. 2 was permitted to develop the Kondivita Plot by constructing buildings and sell the premises on ownership basis. Memorandum of Understanding was executed between M/s. Shree Siddhivinayak Developers Ltd. and ATCO Securities and Finance Ltd. (sister concern of the appellant – now known as Kimaya Wellness Ltd.) (hereinafter referred to as the ‘appellant’s sister concern’) pursuant to which appellant’s sister concern was granted development and marketing rights of 2,00,000 sq. ft. FSI in a property to be constructed on the piece and parcel of land bearing S. No. 3(P) and 4(P) CST No. 5P and 6 admeasuring 26,033 sq. mtrs. and further S. No. 3(P) CST No. 5(P), 6(P) and 7(P) admeasuring 7,341 sq. mtrs. of the Revenue Village Kopri, Powai Road, Taluka Kurla within Greater Bombay (hereinafter referred to as the ‘Kopri Plot’) for a consideration of Rs.44,00,00,000/-(Rupees Forty Four Crores) only.

Earlier Kimaya Wellness Ltd. name was ATCO Securities and Finance Ltd. The name was subsequently changed to Saral Disha Investments Ltd. and again the said name changed to Kimaya Wellness Ltd.

(b) Pursuant to the MOU dated December 20, 1995, appellant’s sister concern advanced a sum of Rs.14,23,50,000/-(Rupees Fourteen Crore Twenty Three Lakhs Fifty Thousand) only to M/s. Shree Siddhivinayak Developers Ltd. All the payments are made through proper banking channels. Thereafter, a Tripartite Agreement dated April 1, 1996 was executed between the appellant, appellant’s sister concern and M/s. Shree Siddhivinayak Developers Ltd. whereby it was agreed that the development and marketing rights under the MOU dated December 20, 1995 would be shared equally between the appellant’s sister concern and the appellant. It was further agreed that out of the sum of Rs.14,