M/S. J.K. Fenner (India) Ltd vs M/S. Tahira Industries (India) ...
2017 Latest Caselaw 8035 Bom

                                                                                                                  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

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

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

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

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.

Habeeb                                                                                                                             5/8





                                                                                                                   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

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

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.)




Habeeb                                                                                                                             8/8