Bombay High Court
Kotak Mahindra Bank Ltd vs Panwar And Company And Another on 21 April, 2023
Bench: B.P. Colabawalla
22.IA.316.20.DOC
Digitally signed
by ANJALI
ANJALI TUSHAR
ASWALE
TUSHAR Date:
ASWALE 2023.04.25
11:55:12
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION NO. 316 OF 2020
IN
EXECUTION APPLICATION NO. 2329 OF 2022
IN
ARBITRATION CASE NO. 1749 OF 2015
KOTAK MAHINDRA BANK LIMITED ...APPLICANT
VS.
PANWAR & COMPANY & ANR. ...RESPONDENTS
Ms. Bijal K. Gogri along with Ms.Shiny Roy i/b O
M GUJAR LAW CHAMBERS, Advocates for the
Applicant.
CORAM : B. P. COLABAWALLA, J
DATE : APRIL 21, 2023
P.C.
The above Interim Application is filed seeking the
following reliefs:
"(a) That the Respondents be directed to deposit decretal
amount of a sum of Rs. 26,85,700/- with further interest on
Rs. 26,85,700/- @ 18% p.a. from 12.06.2015 to till payment
and/or realization thereof;
(b) That the Partners of Respondent No.1 and Respondent
No.2 above named be required by an order of this Hon'ble
Court to file their Affidavit disclosing particulars of their
unencumbered / encumbered properties,movables, assets,
bank accounts,including the hypothecated assets, debtors
lists, etc., as provided under Order 21 Rule 41 of the Code of
Civil Procedure, 1908 since the Decree/Award dated
03/03/2018 passed by the Learned Arbitral Tribunal has
remained unsatisfied for more than 90 days from the date of
its passing;
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(c) The Partners of Judgment Debtor, Respondent No.1 and
Judgment Debtor/Respondent No.2 as described in
paragraph--- be orally examined as to whether there is any
debt or what debts are owing to the judgment debtors and
whether the judgment debtors have any or what other
properties or means of satisfying the decretal claim.
(d) That the Respondents be detained in the 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;
(e) That this Hon'ble Court be pleased direct this Interim
Application to appear on board of this Hon'ble Court after
the period of 15 days from the date of passing order under
prayers [a] and [b] hereinabove for the following further
reliefs.
(f) That pending the hearing and final disposal of the Interim
Application the order of injunction restraining the
Respondents 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
Respondents on affidavit as prayed in prayer clause (b)
above.
(g)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
Respondents as prayed for in prayer clause (b) above;
(h)That the Respondents be directed to disclose their means
on affidavit for satisfying the decree of the Applicant-
Claimants under execution as per Section 51 of the Code of
Civil Procedure;
(i) That the Respondents be arrested and detained in civil
prison as per the provisions of the section 51 of the Code of
Civil Procedure;
(j)This Hon'ble Court be pleased to issue precept under
section 46 of the Code of Civil Procedure 1908 attaching the
properties belonging to Respondents and disclosed by the
Respondents under Order XXI Rule 41 of Code of Civil
Procedure and which are not within the jurisdiction of this
Hon'ble Court.
(k)The properties and salary of the Respondents be attached
and the Applicant-Claimants be allowed to recover their dues
from the same by issuing Warrant for Sale under Order XXI
Rule 64 of the Code of Civil Procedure 1908 thereof;
(l) The Respondents be arrested and detained in the civil
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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 Respondents;
(m) The judgment Debtors Respondents 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;
(n)The judgment debtors 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 October 14,
2022 in which it is stated that the Respondents have refused
service, as more particularly set out in the said affidavit. After
perusing the affidavit, I am satisfied that the Respondents are duly
served.
3. In the above Execution Application, an Arbitral Award dated
03.03.2018, is sought to be executed under which the
Respondents were directed to pay to the Applicant as sum of Rs.
26,85,700/- together with further interest @18% p.a. from
12.06.2015 till payment and/or realization. At the ad-interim
stage, the learned counsel appearing on behalf of the Applicant
presses the above 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
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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 No.1 & 2 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 No.1 & 2.
6. Stand over to 20th June, 2023
7. 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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