Bombay High Court
Kotak Mahindra Bank Ltd vs Kalam Khan on 21 April, 2023
Bench: B.P. Colabawalla
20.IA.1578.23.DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION NO. 1578 OF 2023
IN
EXECUTION APPLICATION(L) NO. 7501 OF 2023
Kotak Mahindra Bank Ltd ..Applicant/Plaintiff
ANJALI Digitally signed by
ANJALI TUSHAR Versus
TUSHAR ASWALE
Date: 2023.04.25
ASWALE 11:50:56 +0530
Kalam Khan & Ors ..Defendants
Ms.Nikita Pawar, with Nehal Deshmukh, Anand Poojari
i/b S.I. Joshi & Co, 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 Defendants be directed to deposit decreetal amount
of Rs.38,32,266.49 (Rupees Thirty Eight Lakhs Thirty Two
Thousand Two Hundred Sixty Six and Forty Nine Paisa
Only) with further interest on Rs.13,43,864/- from
23.02.2023 @24% p.a till payment and/or realisation
thereof;
b) that the Defendants abovenamed 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 22.02.2016 passed by the Learned Arbitral Tribunal
has remained 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 Chamber
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Summons 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 Code of Civil Procedure, 1908 attaching 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 from 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 as per the order XXI Rule 38 of the Code of
Civil Procedure;"
2 The learned counsel appearing on behalf of the
Applicant has tendered an affidavit of service dated 3 rd April, 2023
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evidencing the service of the above Interim Application on
Defendant Nos.1 & 3. None have appeared on behalf of the said
Defendants, though duly served. In these circumstances, I am
satisfied that a case is made out for ad-interim reliefs in terms of
prayer clauses (b) and (g) reproduced above.
3 In these circumstances, there will be ad-interim reliefs
in terms of prayer clauses (b) and (g) reproduced above against
Respondent Nos.1 & 3 only. The affidavits to be filed by the said
Defendants in terms of prayer clauses (b) and (g) shall be done
within a period of four weeks from the date of service of this order
on the said Defendants.
4 Place the above Interim Application on Board for
further reliefs on 20th June, 2023.
5 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 ].
APRIL 21, 2023
Aswale
