Nitin Nagarji Mehta vs Atcom Technologies Ltd And 4 Ors
2023 Latest Caselaw 1310 Bom

                                                                                   32-ial-31629-2022.doc




                                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      ORDINARY ORIGINAL CIVIL JURISDICTION
VISHAL                               INTERIM APPLICATION (L) NO.31629 OF 2022
SUBHASH
PAREKAR                                                WITH
Digitally signed by
                                     INTERIM APPLICATION (L) NO.26255 OF 2022
VISHAL SUBHASH
PAREKAR                                                WITH
Date: 2023.02.08
10:35:49 +0530
                                         NOTICE OF MOTION NO.1211 OF 2015
                                                        IN
                                               SUIT NO.3813 OF 2000

                      Y.A. Chunawala & Co. and Others                       ...Applicants
                            In the matter of
                      Atcom Technologies Limited                            ...Plaintiff
                            vs.
                      Y.A. Chunawala & Co. and Others                       ...Defendants

                      Mr. Jayesh Mestry, for the Applicants/Defendants.
                      Ms. Kavita Shinde, earstwhile advocate for the Plaintiff.
                      Mr. Aniket Worlikar i/b. Sujit Lahoti and Associates, for the
                      Plaintiff.

                                                CORAM :    N. J. JAMADAR, J.

                                                DATE :     FEBRUARY 07, 2023
                      P.C.:

1. Heard the learned counsel for the parties.

2. The Interim Application (L) No. 31629 of 2022 is preferred

seeking directions to Ms. Kavita Shinde, learned counsel for the

plaintiff to return a sum of Rs. 5 lakhs deposited by the applicants

by way of cost in compliance with the order dated 15th March, 2016.

3. By the said order, a learned single Judge of this Court had

permitted defendant No. 2 to file the written statement by

condoning the delay subject to payment of costs of Rs. 5 lakhs to the

plaintiff. The Court further directed that the costs be paid by way of

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cheque drawn in favour of the advocate on record for the plaintiff.

4. The challenge to the said order at the instance of the plaintiff

in Appeal No. 33 of 2016 was negatived by the Appeal Bench by an

order dated 21st November, 2016. The plaintiff carried the matter in

appeal to the Supreme Court. By a judgment dated 7 th May, 2018 in

Appeal (C) Nos. 4267 of 2018 the Supreme Court set aside the order

impugned and dismissed the Notice of Motion No. 1212 of 2015.

5. The applicant/defendant No. 2 has preferred this application

seeking return of the said amount as it was paid as a condition

precedent for taking the written statement of defendant No. 2 on

record. Since the order dated 15th March, 2016 in Notice of Motion

NO. 1211 of 2015 has itself been set aside by the Supreme Court, the

applicant/defendant No. 2 is entitled to refund of the said amount.

6. Though an endevour was made on behalf of the plaintiff to

resist the prayer in the application, there is no controversy about

the character of the said amount which was paid to the advocate for

the plaintiff as and by way of costs only, in compliance with the

order of the Court dated 15th March, 2016. Since the permission to

file the written statement by condoning the delay stood set aside by

the order of the Supreme Court in Appeal (C) No. 4266 to 4267 of

2018 the costs must be repaid to the applicant/defendant No. 2.

7. Having regard to the nature of the prayers sought in the

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instant application, notice was directed to be served on Ms. Kavita

Shinde, the learned advocate to whom the said amount was paid.

Ms. Kavita Shinde appeared yesterday and made a statement that

the said amount of Rs. 5 lakh had not been paid to the plaintiff as

the plaintiff desired to assail the order of permitting defendant No.

2 to file the written statement. Ms. Shinde, however, submitted that

out of the said amount, she had paid TDS to the tune of Rs. 1 lakh.

Ms. Shinde sought time to place the relevant document on record.

Application thus came to be posted today.

8. When the matter is taken up today, the learned counsel for

the applicant, on instruction, submits that the applicant is willing to

accept the sum of Rs. 4 lakhs offered by Ms. Shinde by way of a post

dated cheque.

9. In view of aforesaid statement, the application stands allowed.

10. Let Ms. Shinde hand over the cheque drawn for Rs. 4 lakhs in

favour of defendant No. 2 payable on 14th February, 2023.

11. Application disposed.

12. List on 20th February, 2023 to report compliance qua

encashment of cheque and proof of payment of TDS.

                                           (N. J. JAMADAR, J.)




Vishal Parekar, P.A.                                                          ...3