Pravin Manmal Kothari Proprietor ... vs He State Of Maharashtra (Through ...
2021 Latest Caselaw 4051 Bom

                                                                   12.325.21-ias.odt


                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Basavraj                          CIVIL APPELLATE SIDE JURISDICTION
G. Patil
Digitally signed by              INTERIM APPLICATION (ST) NO.325/2021
Basavraj G. Patil
Date: 2021.03.06                                  IN
15:25:42 +0530
                                       FIRST APPEAL NO.235/2019


                      Shree Pravin Manmal Kothari              ..... Applicant /
                                                               Plaintiff

                      State of Maharashtra & Anr.              ..... Appellants /
                                                               Defendant
                             Vs.

                      Shree Pravin Manmal Kothari              .... Respondent
                                                               Ori. Plaintiff

                      Mr. Swaraj S. Jadhav for the Applicant
                      Mr. Vijay Patil, Special Council a/w. Mr. Y. Y. Dabke, AGP for
                      the State


                                                 CORAM:    K.K.TATED &
                                                           RIYAZ I. CHAGLA, JJ.

DATED : MARCH 4, 2021 P.C.

1 Heard. By this Interim Application, the Applicant is seeking permission to withdraw the sum of Rs.49,98,09,614/- deposited by the Appellant as per order dated 26.02.2019 passed by this Court in Civil Application No.800/2019.

2 The learned counsel for the Applicant submits that in the present proceedings, 10th Jt. Civil Judge, Senior Division, Pune has passed decree in Special Civil Suit No.859/2013 and held that the Appellant - Defendants are

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liable to pay sum of Rs.39,32,64,692/- to the Applicant with interest @ 12% p.a. as mentioned in paragraph 38 of the judgment till realisation of the entire amount.

3 The learned counsel for the Applicant submits that being aggrieved by the said Judgment and Decree dated 04.06.2018, the Appellant State of Maharashtra has preferred the First Appeal. They also filed Civil Application No.800/2019 for stay of the impugned Judgment and Decree. He submits that this Court (Coram : B. P. Dharmadhikari and Revati Mohite-Dere,JJ) vide order dated 26.02.2019 granted ad-interim stay on condition that the Appellant - defendant to deposit 50% of the decretal amount in the Registry of this Court within 12 weeks from the date of order. He submits that thereafter the Applicant had preferred the Civil Application for withdrawal of the said amount being Civil Application No.3680/2019. He submits that this Court had permitted the Applicant to withdraw the amount deposited by the Appellant on furnishing personal undertaking. He submits that the said amount was withdrawn by them.

4 The learned counsel for the Applicant submits that the Appellant by filing Special Leave Petition (Civil) No.3627/2020 had challenged the order dated 30.01.2020 passed by this Court in Civil Application No.3680/2019 by which the Applicant was permitted to withdraw the amount deposited by the Appellant in the Registry of this Court as per order dated 26.02.2019 with accrued interest on furnishing personal undertaking stating that if the First

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Appeal goes against them, they would have to bring back the entire amount with accrued interest within a particular time. He submits that the apex court by order dated 04.11.2020 dismissed the said SLP. Said order reads thus:

"Heard the learned counsel appearing for the parties. We find no merit in the Special Leave Petition. The Special Leave Petition is, accordingly, dismissed. Pending applications, if any, stand disposed of."

5 The learned counsel for the Applicant submits that thereafter in Civil Application NO.800/2019 filed by the Appellant was heard by this Court and directed the Appellant to deposit the remaining 50% along with interest in the Registry of this Court on or before 12.06.2020 failing which the Civil Application would stand dismissed without further reference to the Court. He submits that order dated 30.01.2020 was not complied with by the Appellant. He submits that the Appellant had deposited sum of Rs.43,91,90,386/- in the Registry of this Court on 28.05.2020 and remaining amount of Rs.6,06,19,227/- on 04.11.2020. Therefore, there is no stay to the Judgment and Decree passed by the Trial Court.

6 The learned counsel for the Applicant submits that as the Appellant has failed to comply with the order dated 30.01.2020 in Civil Application No.800/2019 within the stipulated time, there is no stay to the impugned judgment and decree passed by the Trial Court. Hence, the Applicants are entitled to withdraw the remaining 50% amount without furnishing any security.

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                                            12.325.21-ias.odt




7      The learned counsel for the     Appellant - Defendant

seeks two weeks' time to file their Affidavit in Reply with copy to other side.

8 Considering the fact that the order dated 30.01.2020 passed by this court in Civil Application No.800/2019 has not been complied with, following order is passed:

a. The Appellant - Defendant to file Affidavit in Reply on or before 11.03.2021 with copy to other side.

       b.      S.O. to 12.03.2021.




(RIYAZ I. CHAGLA, J.)                    (K.K.TATED, J.)




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