31.WP-401-2017.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.401 OF 2017
M/s. J. K. Fenner (India) Ltd. ... Petitioner
Vs
M/s. Tahira Industries (India) Pvt. Ltd. ... Respondent
...
Mr. Sidharth Samantaray a/w Francisca Philip i/b. Kochhav & Co. for
Petitioner.
Mr. P. J. Thorat for the Respondent.
CORAM : M. S. SONAK, J.
DATE : 11th OCTOBER, 2017 ORAL JUDGMENT :
1. Heard Mr. Sidharth Samantaray for the Petitioner and Mr. Thorat for the Respondent.
2. The challenge in this petition is to the order dated 05.07.2016 by which, the Appeal Court, has rejected the petitioners application seeking waiver of deposit of decretal amount for the stay of the execution of decree for mesne profit pending appeal. Mr. Samantaray, learned counsel for the Petitioner submits that in this case, on account of lapse on the part of the petitioner's Advocate, the matter could not be defended properly before the Trial Court. He submits that a valuation report was in Habeeb 1/8 ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:20:04 :::
31.WP-401-2017.doc fact submitted but on account of lapse on the part of the Advocate the same remained to be proved in accordance with law. He submits that even after the Trial Court made a no cross order, the concerned Advocate, failed to inform this vital fact to the petitioner. He submits that no party should be made to suffer for lapses on the part of his own Advocate. He submits that the Appeal Court has already held that triable issues exists in the Appeal Court and the appeal is admitted. He submits that in this circumstances, the requirement to deposit the entire decretal amount or even the substantial portion of the decretal amount was not at all justified. On these grounds, Mr. Samantaray submits that the impugned order warrant interference.
3. Mr. Thorat learned counsel submits that this is a case of a money decree. He submits that the grounds urged by the learned counsel for the petitioner, apart from not being correct, constitute no grounds for departing from the well settled principle that a party who seeks a stay on the execution of the money decree must either deposit entire decreetal amount or must afford security in the nature of a bank guarantee. He submits that this also not a fit case where indulgence of submitting a bank guarantee can be granted to the petitioner particularly because the Habeeb 2/8 ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:20:04 :::
31.WP-401-2017.doc petitioners have the means to pay but are unwilling to satisfy the decree.
4. The rival contentions now fall for determination.
5. In this case, the appeal court has dismissed petitioner's - judgment debtor's application seeking waiver from the deposit of the decretal amount as the condition for grant of stay to the execution of the decree for mesne profits. The normal rule in such matters is that the decree holder must deposit the decretal amount or secure the decretal amount by a bank guarantee from a nationalised bank. In exceptional circumstances, departure may be made from this normal rule. However, the decree holder, who seeks departure, must make out some case which warrants departure from the normal rule. At least in the facts and circumstances of the present case, the petitioner, has not made out any such case and consequently, there is neither any jurisdictional error nor perversity in the impugned order made by the appeal court.
6. The petitioner, through its learned counsel, made no submissions on the merits of the decree impugned before the appeal court. No case was made out to even suggest that mesne profits were not due and payable or that the quantum determined was too excessive. All that was submitted was that there were lapses on the part of the petitioner's advocate before the Habeeb 3/8 ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:20:04 :::
31.WP-401-2017.doc trial court and on account of such lapses, the petitioner, must not be made to suffer. The submissions indicate that several opportunities were afforded to the petitioner, including, opportunities for proving their own valuation report or cross-examining the witnesses on behalf of the decree holder. It was submitted that the petitioner's lawyer failed to avail of such opportunities and further, did not even inform the petitioner of the 'no cross order' debarring the petitioner from cross-examining the witnesses on behalf of the decree holder. On this basis, it was urged that a decree for mesne profits ought to have been stayed by the appeal court unconditionally or subject to furnish of bank guarantee for only a small portion of the decretal amount.
7. Such grounds, quite rightly, found no favour with the appeal court. No doubt, in some cases, it has been held that a party should not be made to suffer on account of lapses or mistakes, even of his own Advocate. However, it must be noted that most of these cases relate to rustic or the illiterate villagers. Most of such cases relate to exercise of discretion by the courts, taking into consideration various circumstances including but not restricted to the status of the parties, the justice of the matter, comparative hardships and so on. Merely blaming the Advocate, without anything Habeeb 4/8 ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:20:04 :::
31.WP-401-2017.doc more, is no ground to seek reliefs of this nature.
8. In this case, the petitioner company, is a manufacturing concern engaged in the business of manufacturing mechanical belts. Mr. Thorat submits that because the share capital of the petitioner company was found to be much in excess of Rupees One Crore, the petitioner, was held disentitled to protection of the Maharashtra Rent Control Act, 1999. This means that the petitioner is not some rustic or illiterate litigant, having no means to defend a case of this nature effectively. In this case, the petitioner, has placed no material on record to suggest that even the petitioner, through its officers or representatives were pursing the matter before the trial court diligently or at least, made any timely inquiries from their own Advocate as to the progress of the matter. In the absence of all this, and by merely pointing out the lapses of its own lawyer, the petitioner, cannot seek departure from the normal rule that a judgment debtor, in a money decree, be directed to deposit the decretal amount or secure the decretal amount by a bank guarantee, if, the execution of such money decree is to be stayed.
9. The proposition that no party should suffer on account of lapses on the part of his own Advocate, has therefore, to be applied with caution.
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31.WP-401-2017.doc
Further, the proposition that no party ought to suffer on account of lapses of his own Advocate, cannot be stretched to the unreasonable extent of holding that for the lapse on the part of the party's Advocate, the opposite party must suffer. On the grounds raised, therefore, it is not possible to accept the contention that the appeal court ought to have waived deposit of decretal amount, as pre-condition for stay to the execution of the money decree.
10. The petitioner, in the present case possibly with a view to pre-empt the order for deposit or in any case to protract the proceedings and postpone payment, took out an application seeking waiver of deposit, even without formally applying for stay before the appeal court. This procedure it appears, was in order to gain time by inviting the appeal court to rule upon the same and thereafter, to challenge such order in the High Court in proceedings under Article 227 of the Constitution. The petitioner, in the bargain, has succeeded in delaying the matter. The appeal court, has correctly exercised discretion and dismissed the petitioner's application seeking waiver. There is neither any jurisdictional error nor any perversity in the making of the impugned order. Accordingly, there is no reason to interfere with the impugned order in the exercise of extra ordinary Habeeb 6/8 ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:20:04 :::
31.WP-401-2017.doc jurisdiction under Article 227 of the Constitution of India.
11. The petition is therefore dismissed. Ad interim order, if any, is vacated.
12. The learned counsel for the petitioner points out that the petitioner has furnished a bank guarantee in an amount of Rs.1.5 Crores in pursuance of the ad interim order granted in this petition. He requests for continuance of the ad interim order for a period of six weeks, so as to enable the petitioner to take recourse against this order.
13. In this case, the decretal amount is in excess of Rs.6.5 Crores or thereabouts. Execution is already pending. Till date, apart from the bank guarantee in the amount of Rs.1.5 Crores as aforesaid, the petitioner has made no deposit of the decretal amount but has succeeded in protracting both, the execution proceedings as well as the hearing of the appeal against the money decree. Mr. Thorat therefore, opposes extension of interim relief.
14. The petitioner has not made out any case of inability to deposit the decretal amount on account of its financial position. In these circumstances, the ad interim protection is extended for a period of six weeks from today, provided, the petitioner, within a period of two weeks Habeeb 7/8 ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:20:04 :::
31.WP-401-2017.doc from today, furnishes an additional bank guarantee in an amount of Rupees Five Crores from a nationalised bank. The Registry to accept the bank guarantee, even if, the same is furnished during the Diwali vacations.
15. The appeal court is at liberty to make appropriate orders in relation to the bank guarantees, even though, the bank guarantees may have been furnished in pursuance of the orders made by this Court. The parties are therefore, at liberty to apply to the appeal court for appropriate orders in relation to the bank guarantees.
16. The petition is therefore dismissed. There shall be no order as to costs.
(M. S. SONAK, J.)
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