Kotak Mahindra Bank Limited vs Kamal Radhamohan Das And 2 Ors
2023 Latest Caselaw 4004 Bom

                                                                 14 ia 1117-02.doc




            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  ORDINARY ORIGINAL CIVIL JURISDICTION

                  INTERIM APPLICATION NO. 1117 OF 2022
                                  IN
               EXECUTION APPLICATION (L) NO. 7681 OF 2022


Kotak Mahindra Bank Ltd.                                   .. Applicant/Plaintiff

Versus

Kamal Radhamohan Das                                                .. Defendants


     Mr. Nikita Pawar a/w Nehal Deshmukh and Anand Poojari i/b.
     S. I. Joshi & Co. for the Applicant/Plaintiff.


                                         CORAM: B. P. COLABAWALLA, J
                                         DATE: APRIL 21, 2023

P. C.

1.

The above Interim Application is filed by the Applicant

seeking the following reliefs:

"(a) that the Defendants be directed to deposit decreetal amount of Rs. 57,40,450.05 with further interest on Rs.20,12,084/- from 10.03.2022 @ 18% p.a till payment and/or realisation thereof;

(b) that the Defendants abovenamend be required by an order of 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 since the Decree/Award dated 26.11.2011 passed by the Learned Arbitral Tribunal has remained

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unsatisfied for more than 30 days from the date of its passing;

(c) that the Defendants 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;

(d) that this Hon'ble Court be pleased to 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;

(e) that pending the hearing and final disposal of the Interim Application the order of injunction restraining the Defendants 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 Defendants on affidavit as prayed in 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 Defendants as prayed for in prayer clause (b) above;

(g) that the Defendants be directed to disclose their means on affidavit for satisfying the decree of the Plaintiffs under execution as per Section 51 of the Code of Civil Procedure;

(h) that the Defendants be arrested and detained in civil prison as per the provisions of section 51 of the Code of Civil Procedure;

(i) this Hon'ble Court be pleased to issue precept under Section 46 of Civil Procedure, 1908 attaching

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the properties belonging to Defendants and disclose by the Defendants under order XXI rule 41 of C.P.C. and which are not within the jurisdiction of this Hon'ble Court.

(j) the properties and salary of the Defendants be attached and the Plaintiffs be allowed to recover their dues form the same;

(k) the Defendants be arrested and detained in the Civil prison after issuing show cause notice as per the provision of Order XXI Rule 37 as the decree for payment of money of Plaintiffs is not satisfied by the Defendants;

(l) The Judgment Debtor Defendants 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;

(m) The Judgment Debtor be arrested and shall be brought before the Hon'ble Court ans per the order XXI Rule 38 of the of the Court of Civil Procedure;"

2. The learned Advocate for the Applicant has stated that they

have been unable to serve Defendant Nos. 1 and 2. However, Defendant

No.3 has been duly served as evidenced by the affidavit of service dated

11th April, 2023. She has stated that at this stage, and for the time being,

she is pressing the above Interim Application in terms of prayer clauses

(b) and (g) reproduced above only against Defendant No.3.

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3. I am satisfied that Defendant No.3 has been duly served.

Despite service, none have appeared on their behalf and no affidavit in

reply is filed. The Applicant has an Award to the extent of Rs. 57.40

Lakhs which is unsatisfied. In these circumstances, I am of the view that

the Applicant is entitled to ad-interim reliefs in terms of prayer clauses

(b) and (g) above

4. In these circumstances, there shall be ad-interim reliefs in

terms of prayer clause (b) and (g) qua Defendant No.3. Defendant No.3

shall file his affidavits in terms of the aforesaid prayers within a period

of four weeks from the service of this order on the said Defendant.

5. Place the above matter on board on 8th June, 2023 for

further reliefs.

6. 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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