Bombay High Court
Kabra Estate And Investment ... vs The New Aarti Co-Operative Housing ... on 26 August, 2024
Author: Abhay Ahuja
Bench: Abhay Ahuja
2024:BHC-OS:13183
914-IA-2218-2024.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
INTERIM APPLICATION NO. 2218 OF 2024
IN
COMMERCIAL EXECUTION APPLICATION NO. 62 OF 2022
Kabra Estate and investment Consultants ... Applicant/
Decree Holder/
Original Claimant
V/s.
The New Aarti Co-operative Housing
Society Limited ... Judgment Debtor/
Original Respondent
Mr. Sanjay Jain alongwith Mr. Nishant Sashidharan, Mr. Suraj Iyer and
Mr. Mani Thevar instructed by Ganesh & Co., Advocate for the
Applicant.
Mr. Anil R. Mishra, Advocate for the Respondent.
CORAM : ABHAY AHUJA, J.
DATE : 26 AUGUST, 2024
P.C. :
1. Pursuant to the order dated 12th August 2024, today when the
matter is called out, Mr. Mishra appears for the Respondent-Society and
seeks some time to take instructions in the matter.
2. On 12th August 2024, this Court passed the following order :
1. This Application seeks withdrawal of
amount deposited with the Prothonotary and
Senior Master of this Court on satisfying the
914-IA-2218-2024.doc
Award in favour of the Applicant. However,
when the matter called out and Mr. Jain has
made his rather convincing arguments in
support of the Application, Mr. Kapadia,
Chairman alongwith Mr. Rambhi, Secretary of
the Society submit that their earlier lawyer has
refused to appear in the matter and some time
be granted to appoint another lawyer.
2. Accordingly, list on 26th August 2024 on
the supplementary board.
3. Let the Advocate be appointed by the
Respondent-Society by the next date and let the
said lawyer appear with complete instructions,
failing which this Court will be constrained to
pass appropriate orders.
3. A clear direction was given that the Advocate appointed by
the Society to appear with complete instructions, failing which this
Court would be constrained to pass appropriate orders.
4. Mr. Jain, learned Counsel appearing for the Applicant points
out that by order dated 15th December 2023 of the Hon'ble Supreme
Court after having considered that the Society had earlier deposited
Rs.6 crores, directed the Society to make a further deposit Rs.8 crores
and subject to the said deposit, the execution proceedings were stayed,
however, observing that if the Society does not deposit the said
amount, the Applicant herein would be entitled to execute the Award
dated 26th October 2021. Mr. Jain points out that thereafter further
914-IA-2218-2024.doc
time was sought to deposit Rs.8 crores however the same was not
deposited. It is only thereafter that this Application seeking withdrawal
of the amount deposited with the Prothonotary and Senior Master
which was deposited in a Appeal filed under Section 37 of the
Arbitration and Conciliation Act, 1996 has been filed.
5. Mr. Mishra points out that there is an Application under
Section 34 of the Arbitration and Conciliation Act, 1996 challenging the
Award which is pending and that this Court consider the same before
passing any orders.
6. In the case of Manish Vs. Godawari Marathwada Irrigation
Development Corporation1, the Hon'ble Supreme Court has observed
that in execution proceedings, the Judgment Creditor is entitled to
withdraw the amount deposited in the Court, subject to furnishing of
solvent security. This view has been followed by this Court in the case
of State of Maharashtra through Executive Engineer Vs. Patel
Engineering Limited and Ors.2. Accordingly, having heard the learned
Counsel and having considered the submissions, this Court permits the
Applicant to withdraw the sum of Rs.6.90 crores alongwith accrued
interest till date of withdrawal lying deposited with the Prothonotary &
Senior Master in Arbitration Petition No.438 of 2015, subject to
1 SLP(s) 11760-11761 of 2018 decided on 16th July, 2018
2 2021 SCC Online Bom 12596
914-IA-2218-2024.doc
furnishing bank guarantee by the Applicant of a Nationalized Bank to
the satisfaction of the Prothonotary & Senior Master of this Court
alongwith an undertaking that in the event the monies are required to
be brought back, the same will be brought back with interest within a
period of two weeks.
7. The Application accordingly stands allowed and disposed as
above.
(ABHAY AHUJA, J.)
