Bombay High Court
Kalpana B Shah vs Twilight Publications Pvt. Ltd. ... on 24 November, 2021
Bench: A. K. Menon
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CHAMBER SUMMONS NO.867 OF 2017
IN
EXECUTION APPLICATION (L) NO.1161 OF 2017
Kalpana B. Shah .. Applicant
v/s.
Twilight Publications Pvt. Ltd. & Ors. .. Judgment Debtors/Respondents
Mr. Nikhil Patil a/w Vibha Joshi & Sarvesh Patil i/b. Zunjarrao & Co. for
the applicant/decree holder.
Mr. Shivprasad R. Page for respondent no.3.
CORAM : A. K. MENON, J.
DATED : 24TH NOVEMBER, 2021.
P.C. :
1. This is an application by way of interim relief in an Execution
Application. The award holder-claimant seeks an order under
Order XXI Rule 41 in aid of execution. The learned counsel for
the applicant today seeks relief in terms of prayer clause (b).
Respondent nos.1, 3 and 4 are not represented. Respondent no.1
is a company of which respondent nos.2 & 3 were Directors at all
Digitally
signed by
SANDHYA
SANDHYA BHAGU
material time. In any event they are respondents before the
BHAGU WADHWA
WADHWA Date:
2021.11.26
10:27:18
+0530
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arbitral tribunal and an award dated 1 st February, 2012 directs
the applicant to recover the amount awarded along with 18%
interest from 2nd June, 2009 till actual payment by the
respondent. Thus, all four respondents in the present application
are found to be respondents in the arbitration proceedings.
2. On behalf of respondent no.3, the learned counsel submits that he
is not a Director of the 1 st respondent company anymore. He was
a Director at some stage but he has resigned on 11 th May, 2009
and this fact has been recorded in the arbitral award. However,
the fact remains that as on date there is an award against him and
it is executable. There is nothing on record to indicate that the
award has been set aside or that there is pending challenge. The
contention of the respondent no.3 that he has resigned as a
Director cannot be a defence in the present application.
3. The learned counsel for the applicant has relied upon an affidavit
of service dated 18th November, 2021 which sets out attempts at
service upon respondent no.1, 2 & 4. Respondent no.1 being a
company, the applicant has relied upon the extract of the
Registrar of Companies Website being the Company Master Data
which shows the registered office address. It also shows an email
address. However, email address appears to be that of 3 rd
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respondent who claims that he has already resigned. The affidavit
goes on to state that attempt at service of the 1 st respondent office
has made and the packet has been returned since the address is
said to be insufficient. The address as I can see from the
Company Master Data appears to be the same as that on the
postal packet.
4. On behalf of the applicant, it is contended that the address on
which the letter was sent is the very address appearing in the
records of the Registrar of Companies and that can be verified by
Exhibit 'A' to the application. Respondent no.2 is seen to be served
as seen from the postal tracking report at Exhibit 'F'. However,
defendant no.4 could not be served since the addressee was not
found at that address provided in the cause title. According to
the applicant, no other address is available. The respondents are
absent on call and accordingly I pass the following order;
(i) There will be an ad-interim relief in terms of prayer clause (b).
(ii) The respondents shall personally file affidavits in compilation
with the aforesaid direction within two weeks from service of an
order upon them.
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(iii) On behalf of respondent no.3, the learned counsel waives
service.
(iv) In the event of non-compliance, liberty to apply for further
hearing.
(A. K. MENON, J.)
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