Bombay High Court
More Retail Limited vs Nishant Construction Pvt Ltd on 14 June, 2022
Bench: B.P. Colabawalla
20.ial.18027.22..doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
ANJALI
TUSHAR
Digitally signed by
ANJALI TUSHAR
ASWALE
Date: 2022.06.16
INTERIM APPLICATION(L) NO. 18027 OF 2022
ASWALE 11:36:08 +0530
IN
COMMERCIAL EXECUTION APPLICATION NO. 10 OF 2021
More Retail Limited ..Applicant/Orig.Respondent
IN THE MATTER BETWEEN
Nishant Construction Pvt Ltd Applicant/Decree Holder
Vs.
More Retail Limited ..Respondent/Judgment
Debtor
Mr.Anshul Anjarlekar i/b Raval Shah & Co, for the Applicants in
COMEX.10 of 2021 and for the Respondent in IAL.18027 of 2022.
Mr.Nirman Sharma a/w Varun Sethia i/b S. R. Page, for the
Applicant in IAL.18027 of 2022 and for the Respondent in
COMEX.10 of 2021.
CORAM:- B. P. COLABAWALLA,J.
DATE :- JUNE 14, 2022.
P. C.:
The above Interim Application has been filed by the
Original Respondent/Judgment Debtor seeking to raise the attachment
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levied on certain properties of the Judgment Debtor as more
particularly described in paragraph 9 (a) of the Interim Application.
The attachment is sought to be lifted because the Judgment Debtor has
secured the entire claim of the Judgment Creditor under the Arbitral
Award dated 27th September, 2010.
2 Initially, the Award was challenged before the Hon'ble City
Civil and Sessions Court, Ahmedabad under Section 34 of the
Arbitration and Conciliation Act, 1996. The said challenge was negated
by the said Court. Being aggrieved by the same, the Judgment Debtor
approached the Hon'ble Gujarat High Court by preferring First Appeal
Nos. 599 of 2021 and 600 of 2021. In addition thereto, the Judgment
Debtor also preferred Civil Application No. 1 of 2021 for stay of the
operation and effect of the Award. The said Civil Application was
disposed of by the Hon'ble Gujarat High Court vide its order dated 21 st
February, 2022. By the said order, the Gujarat High Court directed the
Judgment Debtor to deposit the entire amount awarded by the Arbitral
Tribunal with the Gujarat High Court within a period of eight weeks
from the date of the said order. Being aggrieved by the Gujarat High
Court order, the Judgment Debtor preferred an SLP before the Hon'ble
Supreme Court. The Hon'ble Supreme Court by its order dated 13 th
April, 2020 directed the Judgment Debtor to deposit the entire amount
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awarded by the Hon'ble Arbitral Tribunal with the Gujarat High Court
within a period of eight weeks from the date of the said order and
further permitted the Decree Holder to withdraw 50% of the amount
deposited upon furnishing security to the satisfaction of the Registrar of
the Gujarat High Court.
3 Pursuant to the directions passed by the Hon'ble Supreme
Court, the Judgment Debtor has, on 7 th June, 2022, deposited an
amount of Rs. 51,39,26,886/- with the Gujarat High Court. Having
deposited this amount, the Judgment Creditor is now fully secured.
The learned counsel appearing on behalf of the Judgment Creditor has
also confirmed the fact that the aforesaid deposit has been made by the
Judgment Debtor before the Gujarat High Court, and therefore has,
instructions to state that the Judgment Creditor has no objection, if the
attachments levied in the above Execution Application against the
properties of the Judgment Debtor are lifted.
4 Considering the aforesaid stand of the parties, the above
Interim Application is allowed in terms of prayer clause (a) which reads
thus:-
"(a) this Hon'ble Court be pleased to pass an Order and
direction:
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i. Setting aside/lifting/removing the Warrant of
Attachment dated 07.12.20212( Exhibit "B" hereto) qua
the immovable property situated at Skyline Icon, 86/92,
5th and 6th Floor, near Mittal Industrial Estate, Andheri
Kurla Road, Andheri (East), Mumbai 400 059;
ii. setting aside/lifting/removing the Warrant of
Attachment dated 07.12.2021 (Exhibit "C" hereto) qua
the movable properties of the Judgment Debtor situated
at Skyline Icon, 86/92, 5th and 6th Floor, near Mittal
Industrial Estate, Andheri Kurla Road, Andheri (East),
Mumbai 400 059;
iii.setting aside/lifting/removing the Warrant of
Attachment dated 04.02.2022 (Exhibit "D"
hereto) quo the following 11 HDFC Banks of the
Judgment Debtor;
1. Account No.:00600310033908
Branch: Fort
IFSC Code:HDFC0000060
2. Account No.00600310009518
Branch: Fort
IFSC Code:HDFC0000060
3. Account No.:00600310036361
Branch: Fort
IFSC Code:HDFC0000060
4. Account No.:00600310022779
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Branch:Fort
IFSC Code:HDFC0000060
5. Account No.00600310025854
Branch:Fort
IFSC Code:HDFC0000060
6. Account No.00600310025861
Branch:Fort
IFSC Code:HDFC0000060
7. Account No.00600310031679
Branch:Fort
IFSC Code:HDFC0000060
8. Account No.00600310033105
Branch:Fort
IFSC Code:HDFC0000060
9. Account No.00600310033112
Branch:Fort
IFSC Code:HDFC0000060
10.Account No.57500000274801
Branch:Fort
IFSC Code:HDFC0000060
11. Account No.57500000275385
Branch:Fort
IFSC Code:HDFC0000060
5 I must mention that prayer clause (b) seeks the disposal of
the Interim Application. At this stage, there is no question of disposing
of above Commercial Execution Application. The learned counsel
appearing on behalf of the Judgment Debtor has fairly stated that he is
not pressing prayer clause (b) at present. Accordingly, prayer clause (b)
is not granted at this stage.
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6 The learned counsel for the Judgment Debtor has also
brought to my attention the order passed by this Court on 17 th March,
2022 in Interim Application No. 469 of 2022 in Commercial Execution
Application No. 10 of 2021. He submitted that by the said order a
statement was recorded on behalf of the Judgment Debtor that the
Judgment Debtor shall not create any third party rights and/or interests
in relation to any of its assets (immovable, movable and/or bank
accounts) except in the usual course of business till 22 nd April, 2022. He
submitted that considering that now the Judgment Creditor is fully
secured, the Judgment Debtor be relieved of this statement.
7 Having heard the learned counsel for the parties on this
aspect, and considering that the amounts due under the Arbitral Award
are secured by the Judgment Debtor by making a deposit in the Hon'ble
Gujarat High Court, I do not see any reason why the statement made by
the Judgment Debtor on 17th March, 2022 needs to be continued
further. In these circumstances, it is ordered that the Judgment Debtor
is relieved of its statement made in paragraph 6 of the order dated 17 th
March, 2022.
8 The learned counsel appearing on behalf of the Judgment
Debtor has stated that the affidavit of disclosure which was to be filed
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pursuant to the order dated 17 th March, 2022, has not yet been filed
though ready, and therefore seeks leave to file the same in the Registry.
Permission is accordingly granted. The affidavit of disclosure shall be
filed in the Registry within a period of one week from today.
9 The above Interim Application is disposed of in the
aforesaid terms. No order as to costs.
10 This order will be digitally signed by the Private
Secretary/Personal Assistant of this Court. All concerned will act on
production by fax or email of a digitally signed copy of this order.
( B. P. COLABAWALLA, J. )
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