Tata Capital Financial Services ... vs Mohd Mustafa Shaikh
2022 Latest Caselaw 10534 Bom

                                                                        15-EXA(L)-18624-2022.doc

         Digitally
         signed by
         GANESH
GANESH   SUBHASH
SUBHASH LOKHANDE
LOKHANDE Date:                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
         2022.10.12
         10:31:01
         +0530                          ORDINARY ORIGINAL CIVIL JURISDICTION
                                              IN ITS COMMERCIAL DIVISION

                                        INTERIM APPLICATION NO. 2716 OF 2022
                                                        IN
                                     EXECUTION APPLICATION NO. (L) 18624 OF 2022
                                                        IN
                                         ARBITRATION CASE NO. 1025 of 2021

                      TATA CAPITAL FINANCIAL SERVIVE LTD                      .. Applicant

                               Vs.

                      MOHD MUSTAFA SHAIKH                                     .. Respondent



                      Adv. Bijal Gogri i/b OM GUJAR LAW CHAMBERS for the Applicant



                                                           CORAM:- B. P. COLABAWALLA,J.

DATE :- 11th OCTOBER, 2022.

P. C.:

1. The above Execution Application is filed seeking the

following reliefs:

"(a) That the Respondent be directed to deposit decretal amount of a sum of Rs. 1,75,771/- with further interest on Rs. 1,75,771/- @ 18% p.a. from 29.07.2021 till payment and / or realization thereof;

                            (b)      That the Respondent above named be required by an order of

                      Ganesh Lokhande                                                    page 1 of 4
                                                     15-EXA(L)-18624-2022.doc

this Hon'ble Court to file their Affidavit stating particulars of their properties etc., as provided under Order 21 Rule 41 of the Code of Civil Procedure, 1908.

(c) That the Respondent be detained in civil prison as per Order 21 Rule 41 Sub-rule 3 of the Code of Civil Procedure for non- compliance of the order passed by this Hon'ble Court in terms of prayer clause (b) hereinabove;

(d) That the Respondent be directed to disclose their means on affidavit for satisfying the decree of the Applicant under execution as per Section 51 of the Code of Civil Procedure;

(e) That pending the hearing and final disposal of the Interim Application the order of injunction restraining the Respondent their servants and agents or any persons claiming through them from transferring and / or creating any third party rights on the properties disclosed by the Respondent on affidavit as prayed in the prayer clause (b) above;

(f) Pending the hearing and final disposal of this Interim Application the Court Receiver High Court Mumbai be appointed as a Receiver on the properties disclosed by the Respondent as prayed for in prayer clause (b) above;

(g) That the Respondent be arrested and detained in civil prison as per the provisions of the section 51 of the Code of Civil Procedure;

(h) This Hon'ble Court be pleased to issue precept under section 46 of the Code of Civil Procedure 1908 attaching the properties belonging to Respondent and disclosed by the Respondent under Order XXI Rule 41 of Code of Civil Procedure and which are not within the jurisdiction of this Hon'ble Court.

(i) The properties and salary of the Respondent be attached and the Applicant be allowed to recover their dues from the same by issuing Warrant for Sale under Order XXI Rule 64 of the Code

Ganesh Lokhande page 2 of 4 15-EXA(L)-18624-2022.doc

of Civil Procedure 1908 thereof;

(j) The Respondent be arrested and detained in the civil prison after issuing show cause notice as per the provisions of Order XXI rule 37 as the decree for payment of money of plaintiff is not satisfied by the Respondent;

(k) The judgment Debtors Respondent be arrested by issuing a Warrant for arrest as per the provision of Order XXI Rule 37 Sub-Rule 2 of the Code of Civil Procedure;

(l) The judgment debtor be arrested and shall be brought before the Hon'ble Court as per the Order 21 Rule 38 of the Code of Civil Procedure;"

2. The learned counsel appearing on behalf of the Applicant

brought to my attention the affidavit of service dated 10 th October, 2022

in which it is stated that service has been duly accepted and confirmed

by the Respondent, as more particularly set out in the said affidavit.

After perusing the affidavit, I am satisfied that the Respondent are duly

served.

3. In the above Execution Application, an Arbitral Award

dated 28th July 2021, is sought to be executed under which the

Respondent was directed to pay to the Applicant as sum of Rs. 1,75,771/-

together with further interest @18% p.a. from 29 th July 2021 till

payment and / or realization. At the ad-interim stage, the learned

counsel appearing on behalf of the Applicant presses the above

Ganesh Lokhande page 3 of 4 15-EXA(L)-18624-2022.doc

application in terms of prayer clause (b) reproduced above.

4. Having heard the learned counsel appearing on behalf of

the Applicant, I do not see any impediment in granting the aforesaid

relief especially considering that there is not stay of the Arbitral Award

which is sought to be executed in the present proceedings.

5. In these circumstances, there will be ad-interim relief in

terms of prayer clause (b) reproduced above. The disclosure affidavit

shall be filed by the Respondent within a period of four weeks from

today. The advocates for the Applicant are directed to serve a copy of

this order by hand delivery on the Respondent.

6. Stand over to 22nd November, 2022.

7. This order will be digitally signed by the 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. )




Ganesh Lokhande                                                    page 4 of 4