Bombay High Court
Maharashtra State Road ... vs Kaulgud Construction Pvt. Ltd. ... on 24 August, 2022
Bench: G.S. Patel, Gauri Godse
Digitally signed by IRESH
19-ASCOMFAST-13280-2022-WITH-IA-17449-2022+.DOC
IRESH SIDDHARAM SIDDHARAM MASHAL
MASHAL Date: 2022.08.25 17:32:59 +0530
Iresh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
COMMERCIAL FIRST APPEAL (ST) NO. 13280 OF 2022
IN
SPECIAL CIVIL SUIT (COMMERCIAL) NO. 5 OF 2018
WITH
INTERIM APPLICATION NO. 17449 OF 2022
IN
COMMERCIAL FIRST APPEAL (ST) NO. 13280 OF 2022
Maharashtra State Road Development ...Appellant
Corporation
Versus
Kaulgud Construction Pvt Ltd through its ...Respondents
Directors & Ors
WITH
COMMERCIAL FIRST APPEAL (ST) NO. 13087 OF 2022
Kaulgud Construction Pvt Ltd & Ors ....Appellants
Versus
Maharashtra State Road Development ....Respondent
Corporation
Mr Sachin Punde, with Tanmay Vispute, Keshav Tripathi, J Kapadia,
i/b Little & Co Advocates & Solicitors for the
Appellant/Applicant in COMFAST/13280/2022 & for
Respondent in COMFAST/13087/2022.
Mr M L Patil, for the Respondent in COMFAST/13280/2022 & for
Page 1 of 4
24th August 2022
19-ASCOMFAST-13280-2022-WITH-IA-17449-2022+.DOC
Appellant in COMFAST/13087/2022.
CORAM G.S. Patel &
Gauri Godse, JJ.
DATED: 24th August 2022
PC:-
1. The original Defendant has filed Commercial First Appeal
(St) No. 13280 of 2022. It is on board. The original Plaintiffs have
also filed Commercial First Appeal (St) No. 13087 of 2022. It is not
on board. It is mentioned, and, by consent, is taken on board.
2. Both First Appeals, Admit.
3. As regards the Record and Proceedings of the lower court in
each admitted First Appeal, while these are formally called for, we
request the Registry to ask the lower court's registry to transmit
electronically a soft copy in in PDF format.
4. The entire record should be serially paginated so that the
PDF page numbers correspond to the physical page numbers (which
means that every page, including index pages and cover sheets will
bear running page numbers).
5. Mr YA Goswami, CPC of this Court, is requested to
coordinate. A copy of this order is to be sent to him. The Roznama
of the lower Court needs to be separately digitized and compiled. All
previous orders of this Court in the First Appeals are also to be
separately digitized and compiled.
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6. All Advocates are entitled to a soft copy of the R & P, if they
so wish.
7. As regards hard or soft copies for the Bench, the necessary
instructions will be issued at a later date.
8. There is an Interim Application No. 17449 of 2022 in
MSRDC's Commercial First Appeal seeking a stay of the impugned
Judgment and Order. The Suit itself was for recovery of
compensation in respect unrecovered toll of Rs. 80,05,75,850/- and
interest. The decree ultimately passed against MSRDC was in the
amount of Rs. 22,99,07,739/- with interest at 12.20% after deduction
of tax at source. The argument by Mr Punde on behalf of MSRDC is
that not only had the Plaintiffs submitted a proposal for settlement
and that this was not marked without prejudice, but the Plaintiffs
had also given signed and notarized undertakings on stamp paper
(page Nos. 161-164). By these, the Plaintiffs had accepted
compensation for toll exemption in the amount of Rs. 8,40,58,000/-
in one undertaking and in the amount of Rs. 7.77 crores in the other
undertaking. The total amount thus accepted by the Plaintiffs in
these two undertakings would be roughly Rs. 15 or 16 crores and
there would be no question of the Plaintiffs filing a suit for any larger
amount or of the court passing a decree in favour of the Plaintiffs in
this larger amount.
9. There is no manner of doubt that the undertakings were also
placed before the Trial Court and have been dealt with in the
impugned Judgment and Order. Mr Patil points out that not only
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were these undertakings considered but other claims pressed by the
Plaintiffs were in fact refused and in respect of which Plaintiffs have
filed their own Commercial First Appeal.
10. We do not think that it is possible to grant a blanket stay on
execution on this basis. Even under the provisions of Order XLI of
the Code of Civil Procedure, 1908, we would be justified in
requiring the security to be provided by the Appellant whether by
way of a deposit or a bank guarantee as a condition for granting the
stay. Mr Patil insists that there must be cash deposit. We do not
agree. It is correctly pointed out that this is after all a State-run
enterprise and it should be open to the Appellant at its option to
either make a cash deposit or to provide an unconditional bank
guarantee or a combination of both.
11. At this stage, Mr Punde seeks time to take instructions.
12. List the matter on 5th September 2022.
13. There will be a temporary stay only until 5th September 2022
on execution of impugned Decree.
(Gauri Godse, J) (G. S. Patel, J)
24th August 2022
