Bombay High Court
Erach Khavar vs Nirmal Bang Securities Pvt Ltd on 6 August, 2024
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
2024:BHC-OS:11960-DB
27-IAL-18499-24.doc
Rameshwar Dilwale
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO.18499 OF 2024
IN
RAMESHWAR ARBITRATION APPEAL (ST) NO.18451 OF 2024
LAXMAN
DILWALE
Erach Khavar ...Applicant
Digitally signed
by RAMESHWAR
LAXMAN
In the matter of
DILWALE
Date: 2024.08.08
Erach Khavar .....Appellant
20:01:02 +0530
Versus
Nirmal Bang Securities Pvt Ltd ...Respondent
...
Mr. Bimal Rajasekhar, Advocate for the applicant.
Mr. Naushad Engineer, Senior Counsel with Mr. Sharad Banal,
Mr. Jayant Gaikwad i/by Mr. Ajay Khandhar, Advocates for
respondent.
...
CORAM : A.S. CHANDURKAR &
RAJESH S. PATIL, JJ.
DATE : 6th August, 2024
P.C.:-
1. By this Interim Application, the applicant-appellant seeks stay
of the order dated 13/04/2024 passed in Arbitration Petition
No.742 of 2017. By that order, the arbitration petition preferred by
the non-applicant-respondent came to be allowed by setting aside
the majority award dated 08/08/2017 and upholding the dissenting
award dated 14/08/2017. Consequently, the arbitration petition
preferred by the applicant came to be dismissed. Another prayer
made by the applicant is for continuing the arrangement in the
matter of furnishing bank guarantee as per order dated
27-IAL-18499-24.doc
29/10/2018 passed in Arbitration No.742 of 2017.
2. We have heard the learned counsel for the parties and we
have perused the awards passed by the arbitral Tribunal as well as
the judgment of the learned Single Judge deciding the arbitration
petitions under Section 34 of the Arbitration and Conciliation Act,
1996 (for short, the Act of 1996). The learned counsel for the
applicant contends that the learned Single Judge has re-
appreciated the evidence while deciding the arbitration petitions
under Section 34 of the Act of 1996 which renders the impugned
adjudication illegal. In fact, that events that transpired after passing
of the impugned awards have been taken into consideration under
Section 34 of the Act of 1996 for setting aside the same. The learned
Senior Advocate for the non-applicant on the other hand supported
the impugned judgment by contending that the learned Single
Judge rightly found that the majority award failed to take into
consideration relevant material evidence thus vitiating the same.
3. It may at the outset be noted that under the majority award
dated 08/08/2017, the applicant was awarded a sum of
Rs.35,77,412/-. While considering the arbitration petition preferred
by the non-applicant for challenging that award, this Court on
27-IAL-18499-24.doc
29/10/2018 permitted the applicant to withdraw the amount of
Rs.46,60,000/- by furnishing a bank guarantee so as to secure the
amount to question in case the arbitration petition preferred by the
non-applicant was allowed. Pursuant to this order, the applicant
has withdrawn the aforesaid amount and has furnished a bank
guarantee. Since the learned Single Judge in exercise of
jurisdiction under Section 34 of the Act of 1996 has set aside the
majority award, as of today, there is no executable award holding
the field in favour of the applicant. The arbitration petition preferred
by the non-applicant has been allowed and the award passed in
favour of the applicant has been set aside. We find substance in
the contention of the learned Senior Advocate for the non-applicant
based on the decision in (Shree Chamundi Mopeds Ltd Vs. Church of
South India Trust Association CSI Cinod Secretariat, Madras) (1992) 3
SCC 1 that even staying the order passed by the learned Single
Judge under Section 34 of the Act would not revive the award that
was initially passed in favour of the applicant. Since there is no
award presently upholding the entitlement of the applicant, the
order setting aside the majority award would not be revived by
passing an order of stay.
27-IAL-18499-24.doc
4. The contentions raised by learned counsel for the parties give
rise to an arguable case and hence the arbitration appeal has been
admitted for being finally heard. We however do not find that there
is any exceptional case made out by the applicant to stay the order
dated 13/04/2024 passed by the learned Single Judge setting aside
the majority award that was standing in favour of the applicant.
For this reason, we do not find it expedient to direct the parties to
continue the arrangement in terms of the interim order dated
29/10/2018 that was passed during pendency of the arbitration
petitions. In case the applicant succeeds in the arbitration appeal
filed under Section 37 of the Act of 1996, he would be entitled to
execute such order against the non-applicant. However as of today,
there is no executable order passed in favour of the applicant that
would permit the applicant to continue to retain the amount
withdrawn by him pursuant to the order dated 29/10/2018.
5. For aforesaid reasons, the prayers made in the interim
application cannot be granted. It is accordingly rejected. In terms
of the order dated 29/10/2018, the applicant is granted time of
four weeks from the uploading of this order to bring back the
amount that was withdrawn by furnishing a bank guarantee in this
Court. The amount withdrawn would carry 8% interest from the
27-IAL-18499-24.doc
date such amount was withdrawn till the date the same is re-
deposited. On such amount being re-deposited, the non-applicant
would be at liberty to withdraw the same. Needless to state that all
these steps would abide by the final order to be passed in the
arbitration appeal.
6. The parties to act on authenticated copy of the order.
[ RAJESH S. PATIL, J. ] [ A.S. CHANDURKAR, J.]
