High Court · 2025
Legal Reasoning
946.CA-4582-2025.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCivil Application No. 4582 Of 2025InFirst Appeal No. 351 Of 19931.Shri Abhay Sopanrao Waghwase2.Shri Anil Sopanrao Waghwase3.Smt. Alka Suresh Thorat4. Smt. Anita Shreerang Deshpande5.Smt. Amisha Amul Waghwase6.Shri Akash Amul Waghwase7.Shri Atish Amul Waghwase8.Shri Atul Sopanrao Waghwase .. Applicants Versus1.The State of Maharashtra,Through Special Land Acquisition Officer,Aurangabad. 2.The Administrator,City and Industrial Development Corporation,Aurangabad.Shri Magan Babaji DhavareSince deceased, through L.Rs.3.Shri Vasant s/o Magan Dhavare4.Smt. Nanda Pandharinath Kamble5.Shri Shrikar s/o Magan Dhavare6.Smt. Vijaya Prabhakar Shirole7.Shri Sopan Kondiba Waghwase8.Shri Anantrao Bajirao Dhashrathe .. Respondents WITHCivil Application No. 1176 Of 2004InFirst Appeal No. 351 Of 19931.The State of Maharashtra,[1]
Legal Reasoning
946.CA-4582-2025.odtThrough Special Land Acquisition Officer,Aurangabad. 2.The Administrator,City and Industrial Development Corporation,Aurangabad. .. Applicants VersusShri Magan Babaji DhavareSince deceased, through L.Rs.1.Shri Vasant s/o Magan Dhavare2.Smt. Nanda Pandharinath Kamble3.Shri Shrikar s/o Magan Dhavare4.Smt. Vijaya Prabhakar Shirole5.Shri Sopan Kondiba Waghwase6.Shri Anantrao Bajirao Dhashrathe .. Respondents WITHCivil Application No. 12465 Of 2004InFirst Appeal No. 351 Of 19931.The State of Maharashtra,Through Special Land Acquisition Officer,Aurangabad. 2.The Administrator,City and Industrial Development Corporation,Aurangabad. .. Applicants VersusShri Magan Babaji DhavareSince deceased, through L.Rs.1.Shri Vasant s/o Magan Dhavare2.Smt. Nanda Pandharinath Kamble3.Shri Shrikar s/o Magan Dhavare4.Smt. Vijaya Prabhakar Shirole.. Respondents[2] 946.CA-4582-2025.odt****** Senior Counsel Mr. P.R. Katneshwarkar i/by Mr. S.V. AdwantAdvocate for the Applicants in C.A. No.4582/2025.* Mr. S.M. GanachariAGP for Respondent No. 1 in C.A. No.4582/2025 and for Applicant No.1 in C.A. Nos. 1176/2004 & 12465/2004.* Mr. Shambhuraje V. DeshmukhAdvocate for Respondent No.2 and for Applicant No.2 in C.A. Nos. 1176/2004 & 12465/2004.* Mr. Avishkar S. ShelkeAdvocate for Respondent Nos. 3 to 6 in C.A. No.4582/2025.***** CORAM : SHAILESH P. BRAHME, J. DATE OF RESERVING THE ORDER : 25th APRIL 2025 DATE OF PRONOUNCING THE ORDER : 29th APRIL 2025 ORDER :.Heard Mr. P.R. Katneshwarkar learned Senior Counselholding for Mr. Shrikant V. Adwant for the Applicants, learnedAGP for Respondent No.1, Mr. Shambhuraje Deshmukh Advocatefor the Respondent No.2 and Mr. Avishkar Shelke for theRespondent Nos. 3 to 6. 2.The Applicants have filed this Civil ApplicationNo.4582/2025 in a disposed of appeal praying for direction to theoffice to accept an amount of Rs.5,00,000/- and for theannulment of surety bond and solvency furnished to this Court inpursuance of orders dated 03.08.1993 in Civil ApplicationNo.2667/1993. The Respondent No.7 is dead, but presentApplicants are his legal heirs. Respondent No.8 is not acontesting party. [3] 946.CA-4582-2025.odt3.Simultaneously, Civil Application No.1176/2004 filed by theRespondent Nos. 1 and 2 for refund of amount of Rs.6,00,000/-with 15% of interest and in default direction to attach and salethe property and Civil Application No.12465/2004 for direction toserve present Respondent Nos. 3 to 6 through paper publication,are also considered, though they are not circulated. I propose torefer the parties in Civil Application No.4582/2025. 4.The First Appeal Nos.351/1993 and 364/1998 wereemanating from the judgment and award passed by theReference Court for acquisition of the property of Late ShriMagan Babaji Dhavare who is represented by his heirs presentRespondent Nos. 3 to 6. By common judgment and order dated08.08.2003, the appeals preferred by Claimants for enhancementof the compensation and other appeals preferred by theRespondent Nos. 1 and 2 were decided. Appeals preferred by theRespondent Nos. 1 and 2 were allowed, whereas appeals of theClaimants were dismissed. The common judgment and awardwas confirmed by Apex Court. 5.When the first appeals referred above, were pending,Respondent Nos. 1 and 2 had filed Civil ApplicationNo.2667/1993, soliciting stay to operation and execution ofaward passed by the Reference Court. By conditional orderpassed on 03.08.1993, interim relief was granted by directingthe Respondent Nos. 1 and 2 to deposit amount of Rs.6,00,000/-in High Court on or before 14.09.1993. Simultaneously, theamount was permitted to be withdrawn on furnishing security or[4] 946.CA-4582-2025.odtthe bank guarantee to the satisfaction of the Additional Registrar.Accordingly, the amount was deposited. The matter was put upbefore the Registrar and Respondent Nos. 3 to 7 furnishedsolvent surety in the form of solvency certificate, security bondand the affidavit of the sureties and the amount was disbursed tothem. 6.Respondent No.7 - Late Sopan Kondiba Waghwase stoodsurety through the solvency certificate, security bond andaffidavit to the tune of Rs.6,00,000/-. The house propertybearing CTS No.17561, Devgiri Colony, Aurangabad was offeredas a security. Similarly, Mr. Anantrao Bajirao Dashrathe alsostood surety vide solvency certificate, security bond and affidavitto the extent of balance Rs.1,00,000/- by offering his houseproperty. After the satisfaction of Registrar, Respondent Nos. 3 to6 were permitted to receive amount of Rs.6,00,000/-. 7.In Civil Application No.1176/2004, sureties RespondentNo.7 – Late Sopan Kondiba Waghwase and Respondent No.8 -Mr. Anantrao Bajirao Dashrathe were not impleaded. It wasagainst Respondent Nos. 3 to 6. The sureties were subsequentlyadded. Respondent Nos. 3 to 6 could not be served. Hence CivilApplication No.12465/2004 was filed. No orders were passed inthe application, granting any permission which was sought for. 8.Respondent Nos. 1 and 2 did not prosecute Civil ApplicationNo.1176/2004 diligently. Respondent No.7 - Late Sopan KondibaWaghwase – Predecessor of the Applicants passed away on[5] 946.CA-4582-2025.odt16.03.2005. When he was impleaded, he was not alive. It wasreported by the process server about death of Respondent No.7.No steps were taken to bring present Applicants as heirs ofRespondent No.7 on record. By conditional order dated20.06.2014, application to the extent of original surety,Respondent No.7 was dismissed. 9.Applicants who are heirs of the original surety to the extentof Rs.5,00,000/- have approached this Court for dischargingthem from the liability. The house property which was offered assurety needs to be released. It is contended in the applicationthat they are no longer liable for any indemnity. It is stated thatno contract exists between them and the Respondent Nos. 1 and2. The claim of the Respondent Nos. 1 and 2 which is sought tobe pressed into service by Civil Application No.1176/2004 is staleone and unexecutable. 10.Learned Senior Counsel Mr. P.R. Katneshwarkar tenders onrecord a compilation of papers. He would submit that theApplicants have approached this Court for releasing their houseproperty which is in dilapidated condition. They are desirous ofremoving the encumbrance which was created but which nolonger subsists due to passage of the time and superveningevents. He would submit that out of abundant precautions and toshow respect to the commitment made by their father to thisCourt, they offered to pay Rs.5,00,000/- to the Respondent Nos.1 and 2. It is contended that as the Respondent No.2 did notaccede the request, they are offering the said amount to be[6] 946.CA-4582-2025.odtdeposited in this Court. It is submitted that the Respondent Nos.1 and 2 have no executable claim against them and their houseproperty. It is further submitted that the Respondent Nos. 1 and2 cannot proceed against the security and therefore the solvencycertificate and security bond need to be annulled.11.Per contra, Mr. Shamburaje Deshmukh appearing forRespondent No.2 has vehemently opposed the submissions ofthe Applicants. He would rely on the various orders of CivilApplication No.1176/2004 to buttress the submission that theApplicants are liable to refund the amount with 15% of interest.He would submit that the Respondent Nos. 1 and 2 weresuccessful before High Court as well as Supreme Court and theyare entitled to receive the amount disbursed to the OriginalClaimants alongwith accrued interest. 12.I have heard the contesting parties for deciding theapplications filed in a disposed of First Appeal. Almost all factsnarrated above are undisputed. Late Magan Babaji Dhavare –Predecessor of Respondent Nos. 3 to 6 was permitted to receiveamount of Rs.6,00,000/- by furnishing solvent surety andindemnity bond. Accordingly, the solvency offerred byRespondent No.7 - Late Sopan Kondiba Waghwase – Predecessorof the Applicants to the extent of Rs.5,00,000/- and solvencyoffered by Respondent No.8 – Anantrao Bajirao Dashrathe to theextent of Rs.1,00,000/- were accepted. 13.It reveals from record that neither Respondent No.7 –[7] 946.CA-4582-2025.odtSopan Kondiba Waghwase, nor his heirs were party to CivilApplication No.1176/2004. The compilation which is placed onrecord by the Applicants, shows that after disposal of appeals,sureties had requested the Respondent No.2 – CIDCO andshowed readiness to refund the principal amount and interestwas requested to be waived. Those applications were notconsidered by Respondent No.2. No material is shown to me asto what steps were taken against sureties of present and otherappeals. 14.Respondent Nos. 1 and 2 filed Civil ApplicationNo.1176/2004 on 12.02.2003. Late Sopan Kondiba Waghwasewas impleaded on 25.08.2006, but before that he was passedaway on 16.03.2005. The Respondent Nos. 1 and 2 impleadeddead person as a party Respondent in their application. This factwas brought to the notice of this Court by the report of processserver, but still no steps were taken by them. Ultimatelyapplication against deceased – Sopan Kondiba Waghwase wasdismissed for default vide order dated 20.06.2014. Recordreveals that matter was adjourned on number of times to takesteps but no steps were taken. The said application was notdiligently prosecuted by the Respondent No.2. It was kept in adormant position. Under these circumstances, I am of theconsidered view that there is no actionable claim survives in CivilApplication No.1176/2004 against the sureties or the securities.The said application has become infructuous and no relief can begranted as such. [8] 946.CA-4582-2025.odt15.Learned Senior Counsel is right in contending that theRespondent No.7 – Sopan Kondiba Waghwase died on16.03.2005, thereafter no steps were taken to bring theApplicants on record. They are not liable because no contractsubsists between them and the Respondent Nos. 1 and 2. TheRespondent Nos. 1 and 2 are unable to show the steps taken bythem against Original Claimant – Magan Babaji Dhavare –Predecessor of Respondent Nos. 3 to 6. 16.The Applicants are facing difficulties in developing theirproperty because of the encumbrance created against it duringthe pendency of the appeals. The Applicants are ready to payamount of Rs.5,00,000/- either to the Respondent No. 2 ordeposit it in this Court to show their respect to the commitmentmade by their Predecessor in interest – Late Sopan KondibaWaghwase. I do not see any reason to doubt their conduct. EvenCivil Application No.12465/2004 was not prosecuted diligently.Despite the lapses on the part of Respondent Nos. 1 and 2, dueto good sense and moral responsibility the Applicants are offeringamount of Rs.5,00,000/-. Their bonafides cannot be doubted. 17.I have already recorded that the Applicants are not liable topay the dues to the Respondent Nos. 1 and 2. No contractsubsists between them. Therefore, the submission of learnedCounsel Mr. Shamburaje Deshmukh for awarding interest, cannotbe accepted. The ends of the justice would be served by directingRespondent No.2 to accept amount of Rs.5,00,000/- or bypermitting the Applicants to deposit the said amount in this Court[9] 946.CA-4582-2025.odtto release their property from the encumbrance. For the reasonsstated above, I pass following order :ORDER(i)The Applicants shall deposit amount of Rs.5,00,000/- directly in the office of Respondent No.2 and submit a receipt thereof, to this Court or shall deposit Rs.5,00,000/- in this Court which shall be disbursed to the Respondent No.2. (ii)The Applicants shall deposit the above amount within period of two weeks from today. (iii)On depositing the amount, the surety bond and the solvency certificate executed by Respondent No.7- Late Sopan Waghwase, shall stand annulled and house property bearing CTS No.17561, Devgiri Colony, Aurangabad shall stand discharged from any encumbrance or charge of the Respondent Nos. 1 and 2. (iv)Civil Application No. 4582/2025 is allowed in above terms.(v)Civil Application Nos. 1176/2004 and 12465/2004 are rejected. [ SHAILESH P. BRAHME ] JUDGENajeeb..[10]