Bombay High Court
Aditya Birla Finance Limited vs Babulal Banana Shop on 9 January, 2024
Author: R.I. Chagla
Bench: R.I. Chagla
31-ial-18004-2023.doc
jsn
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO.18004 OF 2023
IN
EXECUTION APPLICATION (L) NO.17772 OF 2023
Aditya Birla Finance Ltd. ...Applicant /
Decree Holder
Versus
Babulal Banana Shop & Ors. ...Respondents /
Judg. Debtors
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Ms. Tikshta Modi and Mr. Kalpak Nyayanit i/b. Akhil Modi and
Associates for the Applicant / Decree Holder.
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CORAM : R.I. CHAGLA J.
DATE : 9TH JANUARY, 2024.
ORDER :
1. By this Interim Application, the Applicant / Decree
Holder is seeking various reliefs. However, at this stage, the relief of
injunction restraining the Respondents / Judg. Debtors from
transferring and / or creating third party rights on the property
situated at Pardi No.5, H. No.1, Makmojiya Compound Near Serma
Compound, Wakan Pada, Vasai Road (East), Dist Palghar 401 208 is
sought. Further, the Applicant / Decree Holder is seeking disclosure
order in terms of prayer Clause (b) of the Interim Application.
31-ial-18004-2023.doc
2. The learned Counsel appearing for the Applicant /
Decree Holder has referred to the Award dated 30th September, 2022
which has been passed by the Sole Arbitrator in respect of which
execution is sought. In the operative part of the said Award, the
Respondents have been directed to pay a sum of INR 1,07,22,119/-
together with further simple interest at the rate of 18% p.a. on the
said amount from 28th November, 2022 till payment and / or
realization.
3. Further, the Applicant / Decree Holder has been granted
liberty to sell the said secured properties for realization of the
awarded amount.
4. The learned Counsel appearing for the Decree Holder
has tendered Affidavit of Service dated 18th July, 2023 which is
taken on record. The Affidavit of Service shows that the Respondents
have been served by email and Whatsapp both dated 14th July, 2023
as well as by RPAD at the addresses of the Respondents mentioned in
the cause title which is supported by postal receipts and tracking
report which shows that the Respondents have been duly served and
despite service have not made an appearance.
5. The learned Advocate appearing for the Applicant /
31-ial-18004-2023.doc
Decree Holder has also referred to some payments which have been
made by the Respondents / Judgment Debtors mentioned in
paragraph 8 of the Interim Application. However, thereafter, the
Respondents / Judgment Debtors have failed to make balance
payment under the Award dated 30th September, 2022, leaving an
amount of INR 1,02,23,197/- as outstanding as on 30th June, 2023.
This has been stated in paragraph 9 of the Interim Application.
6. Considering the averments in the Interim Application, as
well as the Award dated 30th September, 2022 of which execution
has been sought and noting the fact that though the Respondents
made some payments, they have thereafter failed to satisfy the Award
which has become a decree of this Court. Further, the Respondents
despite service have not made an appearance.
7. Accordingly, the ad-interim relief is granted in terms of
prayer Clauses (b) and (d) of the Interim Application, which read
thus:-
"(b) That the Respondents abovenamed be required
by an order of this Hon'ble Court to file their affidavit
stating particulars of their properties, including but
not limited to its bank accounts, shares, investments,
movable and immovable properties etc., as provided
under Order 21 Rule 41 of the Code of Civil
Procedure, 1908 as the Arbitral Award dated 23rd
31-ial-18004-2023.doc
September, 2022 passed by the learned Arbitral
Tribunal has remained unsatisfied for more than 30
days from the date of its passing."
(d) That pending the hearing and final disposal of the
Interim Application the Order of injunction
restraining the Respondents and their servants and
agents or any persons claiming through them from
transferring and / or creating any third party rights on
the property situated Pardi No.5, H. No.1, Makmojiya
Compound Near Serma Compound, Wakan Pada,
Vasai Road (East), Dist Palghar 401 208 and on the
properties so disclosed by the Respondents on
affidavit as prayed in prayer Clause (b) above.
8. The Respondents / Judgment Debtors shall file their
Affidavit of Disclosure within a period of three weeks from being
served with this Order.
9. The Advocates for the Applicant / Decree Holder shall
serve notice of this Order on the Respondents / Judgment Debtors
and file Affidavit of Service on or before the next date.
10. The Interim Application shall be placed on 20th
February, 2024.
[ R.I. CHAGLA J. ]
