Bombay High Court
Palihill Mercantile Company Private ... vs Soril Infra Resources Limited on 18 January, 2024
Author: R.I. Chagla
Bench: R.I. Chagla
23-ia-2726-2022.doc
jsn
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION NO.2726 OF 2022
IN
EXECUTION APPLICATION NO.352 OF 2021
Palihill Mercantile Company Pvt. Ltd. ...Applicant /
Ori. Claimant/
Decree Holder
Versus
Soril Infra Resources Ltd. ...Respondent /
Judgment Debtor
----------
Mr. Simil Purohit with Mr. Atul Daga i/b. Kanga and Company for
the Applicants / Decree Holder.
Anushak Daver and Shrey Shah i/b Vidhi Partners for the
Respondent.
----------
CORAM : R.I. CHAGLA J.
DATE : 18TH JANUARY, 2024.
ORDER :
1. Mr. Simil Purohit, the learned Counsel appearing for the
Applicant / Original claimant has referred to the prior Orders passed
by this Court which includes the orders dated 9th January, 2023 and
24th January, 2023. By the order dated 9th January, 2023, this Court
had considered prayer Clause (a) of the Interim Application which
was regarding disclosure to be made by the Respondent / Judgment
Debtor in view of the Award having been passed by the Arbitral
23-ia-2726-2022.doc
Tribunal dated 16th July, 2020 against the Respondent / Judgment
Debtor which is to the tune of Rs.19,74,12,869/- with interest
thereon @ 21% p.a. from 30th June, 2011 to 16th July, 2020 which
interest amounts to Rs.43,72,24,089/-, totalling an awarded amount
of Rs.63,46,36,958/-. From which the amount of Rs.1,80,00,000/- is
to be adjusted as the interest free Security Deposit. Thus the total
claim awarded is Rs.61,66,36,958/- and the Applicant has claimed
interest @ 21% p.a. from 1st April, 2021 till payment and / or
realization.
2. Having considered the prayer Clause (a) of the Interim
Application this Court by the said Order dated 9th January, 2023 had
directed the Respondent / Judgment Debtor to file Affidavit of
Disclosure in terms of prayer clause (a) of the Interim Application
within a period of three weeks from the date of the said Order. This
was in exercise of the powers of this Court under Order XXI Rule
41(2) of the Code of Civil Procedure, 1908.
3. Thereafter, by the subsequent Order dated 24th January,
2023, this Court considered the request of learned Advocate for the
Respondent / Judgment for extension of time for complying with the
order dated 9th January, 2023. The reason for the delay was stated to
23-ia-2726-2022.doc
be that the Respondent / Judgment Debtor had been amalgamated
and merged with the another entity and the assets and liabilities of
the Respondent stood transferred to the amalgamated entity. In view
thereof, time was extended for filing Affidavit of Disclosure which
was to be filed by the Respondent / Judgment within a period of two
weeks from the date of the said Order. It was made clear that this is
the last opportunity given to the Respondent / Judgment Debtor to
file Affidavit of Disclosure and in the event Affidavit of Disclosure has
not been filed within stipulated time, further ad-interim relief will be
granted.
4. The matter has thereafter come up today.
5. Mr. Purohit has submitted that the Respondent /
Judgment Debtor has disobeyed the prior orders of this Court which
had directed Affidavit of Disclosure to be filed and upon such
disobedience, this Court may exercise its power under Order XXI Rule
41(3) to direct the persons disobeying the order to be detained in a
civil prison for a term not exceeding three months unless before the
expiry of such term the Court directs release.
6. Mr. Purohit has referred to the decision of this Court in
23-ia-2726-2022.doc
Cipla Ltd. Vs. Mr. Krishna Dushyant Rana1, wherein four Affidavits of
Disclosure had been filed. However, it was found that there were
false and incorrect statements made in the Affidavits of disclosures.
This was considered to be with a view to misguide this Court.
Accordingly, this Court had exercised its power under Order XXI Rule
41(3) of the CPC holding that the Defendants had obstructed the
administration of justice and deserves detention in civil prison for
three months, the maximum period provided in the said provision.
He has submitted that a similar order requires to be passed in the
present case.
7. In the present case considering that the Affidavit of
Disclosure has not been filed by the Respondent / Judgment Debtor
in spite of directions of this Court to file the same under Order XXI
Rule 41(2) of the CPC, it appears that the Respondent / Judgment
Debtor have no intention in obeying orders of this Court.
8. Mr. Davar the learned Counsel appearing for the
Respondent / Judgment Debtor states that despite the Advocate
addressing several emails, Respondent / Judgment Debtor have
1 Chamber Summons No.735 of 2013 in Summary Suit No.475 of
2010 dated 25th and 31st August, 2016.
23-ia-2726-2022.doc
provided insufficient information and thus making it impracticable
for the Advocate of the Respondent / Judgment Debtor to file
Affidavit of Disclosure.
9. Having considered these submission in my view prior to
passing any order of detaining the concerned officer of the
Respondent / Judgment Debtor, who has failed to file disclosure
Affidavit, a notice is required to be issued to him, asking him to show
cause why an order should not be passed under Order XXI Rule 41(3)
of the CPC, detaining him in a civil prison for a term not exceeding
three months for disobedience of orders of this Court.
10. Accordingly, the Registry is directed to issue notice
under Order XXI Rule 41(3) of the CPC returnable on 13th February,
2024 to the following officer of the Respondent / Judgment Debtor.
Mr. Swapnil M. Sinkar,
Deputy Manager (Finance and Accounts),
Mobile No.74 99 81 15 15.
Email ID. [email protected]
11. Mr. Swapnil M. Sinkar shall remain present in
Court on the next date.
[ R.I. CHAGLA J. ]
