Bombay High Court
Bonton Holidays Pvt. Ltd vs European Gateway Sarl on 8 May, 2024
Author: B. P. Colabawalla
Bench: B. P. Colabawalla
502-OSCOMAP-492-2019+.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
COMMERCIAL APPEAL NO. 492 OF 2019
IN
SUMMONS FOR JUDGMENT NO. 67 OF 2018
Bonton Holidays Pvt. Ltd. ...Appellant
Versus
European Gateways SARL ...Respondent
Mr. Rahul Narichania, Senior Counsel, a/w Vikil Dhoka & Ankut
Shah, i/b GM Legal, Advocates for the Appellant.
Mr. Karl Tamboli, a/w Shruti Maniar, Shrikant Pillai & Sannaya
Ghandhi, Shivani B., i/b M/s. Solomon & Co., Advocates for
Respondent.
CORAM : B. P. COLABAWALLA &
SOMASEKHAR SUNDARESAN, JJ.
DATE : MAY 08, 2024
PC :
1. Mr. Narichania, the Senior Counsel, appearing on behalf of
the Appellant has tendered a draft amendment to bring on record the
bankruptcy trustee Mr. Bizzotto Laurent who has been appointed as the
trustee of the Respondent (original Plaintiff) in bankruptcy proceedings
initiated in Luxembourg. The said draft amendment tendered to the
Court is taken on record and marked 'X' for identification. The
Digitally
signed by
ASHWINI
ASHWINI JANARDAN
JANARDAN VALLAKATI
VALLAKATI Date:
2024.05.09
10:48:27
MAY 08, 2024
+0530 Ashwini Vallakati
502-OSCOMAP-492-2019+.doc
amendment shall be carried out forthwith in front of the Associate of
this Court. Reverification is dispensed with.
2. Mr. Tamboli, the learned Counsel who was appearing on
behalf of the original Respondent has stated that he and his Advocate
have instructions to appear on behalf of the bankruptcy trustee and they
shall file their note of appearance within a period of one week from
today. The said statement is accepted.
3. By this Appeal, the Appellant has challenged the judgment
dated 21st November 2018 passed by a Learned Single Judge of this
Court, by which a decree in the sum of INR 1,63,33,703.42/- along with
interest @ 6% p.a. thereon from the date of filing of suit till realization,
was passed in favour of the Respondent/Original Plaintiff against the
Appellant/Original Defendant.
4. The present Appeal was filed in the year 2018. However, till
4th April 2024, there was no stay granted with respect to the operation of
the impugned Judgement and Decree. In these circumstances, the
Respondent had filed Comm. Execution No.1235 of 2019 ("Execution
Application") for execution of the Decree.
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5. Various orders were passed by this Court in the execution
proceedings including directions for disclosure of assets by the
Appellant. On 21st March, 2024, this Bench in the present Appeal had
clarified that the pendency of this Appeal will not come in the way of the
Respondent proceeding with the Execution application.
6. On 4th April 2024, the learned Senior Counsel appearing on
behalf of the Appellant, tendered a Demand Draft in the sum of INR
2,24,58,841.67/- which was the amount due and payable to the
Respondent under the impugned Decree together with interest up to
20th March, 2024. The Demand Draft was made in favour of the
Prothonotary and Senior Master of this Court. Accordingly, this Court in
its order dated 4th April, 2024, directed that the execution of the
impugned Decree would be stayed upon the aforesaid amount being
encashed by the office of this Court. The Appeal was thereafter posted
for hearing on 10th April, 2024 at 2:30 p.m.
7. The matter did not reach on 10 th April, 2024 and was re-
posted to 24th April, 2024. On 24th April, 2024, the Learned Counsel
appearing on behalf of the Respondent requested this Court to permit
the Respondent to withdraw the amount deposited by the Appellant
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with the office of this Court. The matter was adjourned to 26 th April,
2024. This Court had indicated that the Advocates for the Respondent
should take instructions regarding withdrawing the money against
sufficient security like a Bank Guarantee.
8. On 26th April, 2024, the Learned Counsel appearing on behalf
of the Respondent informed this Court that an order had been passed by
the Commercial Court at Luxembourg on 27 th March, 2024 in respect of
Bankruptcy proceedings against the Respondent, and that a Bankruptcy
Trustee had been appointed in respect of the Respondent/ Original
Plaintiff. This Court was informed that the Bankruptcy Trustee had
instructed the present Advocates on Record for the Respondent to
represent the Respondent in the present Appeal. A request was made to
stand over the matter to enable the parties to take steps to bring the
Bankruptcy Trustee on record as the representative of the Respondent.
9. Today when the matter is called out, as mentioned earlier,
Mr. Tamboli, stated that he has instructions from the bankruptcy
trustee to request this Court to permit the Respondent to withdraw the
amount deposited by the Appellant with the office of this Court against
providing a bank guarantee of the same amount issued by ICICI Bank
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Ltd. This Bank guarantee would be in favour of in the name of the
Prothonotary and Senior Master of this Court. In answer to this, Mr.
Narichania submitted that if the Respondent is permitted to withdraw
the amount deposited by the Appellant, then the terms of the bank
guarantee to be issued by ICICI Bank Ltd. should be to the satisfaction
of the Prothonotary and Senior Master of the Court. In other words, it
should be an irrevocable unconditional bank guarantee and which has
to be kept alive till the disposal of the above Appeal and for a period of
four weeks thereafter.
10. After hearing the parties following order is passed:
a) The Respondent shall furnish an irrevocable and an
unconditional bank guarantee of ICICI Bank Ltd. in the
name of the Prothonotary and Senior Master of this Court
in the sum of Rs.2,24,58,841/- together with interest at 6%
p.a. on Rs.1,63,33,703/- and shall be kept alive until the
disposal of the Appeal and for a period four weeks
thereafter.
b) If the bank guarantee is to be renewed from year to year,
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the same shall provide for interest at 6% p.a. for example;-
(i) for the 1st year, the bank guarantee shall be for the
total amount of Rs.2,34,38,863/- (being Rs.2,24,58,841/- +
Rs.9,80,022/- towards interest @ 6% p.a.);
(ii) for the 2nd year the bank guarantee shall be for an
amount of Rs.2,44,18,885/- (being Rs.2,34,38,863/- +
Rs.9,80,022/-); and so on.
11. Mr. Tamboli has submitted that the bank guarantee will be
furnished by Mrs. Arti Mediratta, who is the director of the Respondent
in bankruptcy. He has further stated that the bankruptcy trustee by his
email dated 6th May, 2024 addressed to his Advocates has stated that
the amount to be withdrawn from this Court can be deposited in the
account of Mrs. Arti Mediratta, the details of which are given herein
below:
Name of the Bank: ICICI Bank
Account Name: Arti Mediratta
NRO Account Number: 699101075506
Branch - Mumbai- Versova- Lokhandwala Market
IFSC Code- ICIC0006991
MICR Code: 400229175
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The said email is tendered to the Court, taken on record
and marked 'X' for identification. It is accordingly ordered that this
amount of Rs.2,24,58,841/- to be withdrawn from this Court shall be
deposited in the account maintained with ICICI Bank Ltd, the details of
which are set out above.
12. Mr. Tamboli, on instructions, has further stated that in the
event the Appeal succeeds neither the bankruptcy trustee nor Mrs. Arti
Mediratta shall create any hurdle for encashments of the said bank
guarantee by the Prothonotary and Senior Master of this Court. He
submitted that an affidavit to this effect shall also be filed not only by
the bankruptcy trustee but also by Mrs. Arti Mediratta within a period of
six weeks from today. The same is duly noted.
13. This order will be digitally signed by the Private Secretary/
Personal Assistant of this Court. All concerned will act on production by
fax or email of a digitally signed copy of this order.
[ SOMASEKHAR SUNDARESAN, J.] [ B. P. COLABAWALLA, J.]
MAY 08, 2024
Ashwini Vallakati
