Smt. Madhuparna Nath Nee Bose vs Sri Prasanjit Nath
2023 Latest Caselaw 2061 Cal

28.03.2023
 rpan/09
                             FAT 42 of 2019
                                       +
                  IA No.: CAN 1 of 2019 (Old No.: CAN 7127 of 2019)
                      Smt. Madhuparna Nath nee Bose
                                   - Versus -
                              Sri Prasanjit Nath

                   Mr. Soumya Majumdar,
                   Mr. Supratim Laha,
                   Mr. Binay Kumar Jain,
                   Mr. Piyush Jain
                                   ... for the Appellant.
                   Mr. Jishnu Chowdhury,
                   Mr. Arif Ali
                                   ... for the Respondent.

The present appeal has been preferred challenging

the judgment and decree dated 29th September, 2018

passed by the learned 9th Civil Judge (Senior Division),

Alipore in Money Suit No.3828 of 2014. In connection

with the appeal, the appellant has filed an application for

stay, being CAN no. 7127 of 2019. The said application

was heard by a co-ordinate Bench of this Court and an

order was passed on 18th November, 2019 directing the

appellant to deposit unconditional bank guarantee issued

by an nationalized bank covering the decreetal amount in

favour of the respondent within four weeks from date and

an unconditional stay of all further proceedings in Money

Execution No.3 of 2019 was granted for a period of four

weeks from the said date. It was also observed that in the

event of compliance of such directives, the order of stay

granted shall continue till disposal of the application.

Mr. Majumdar, learned advocate appearing for the

appellant submits that the directions contained in the

order dated 18th November, 2019 have already been

complied with and the bank guarantee was deposited and

the same has been renewed till 4 th December, 2023. In

view thereof, the interim order needs to be extended till the

disposal of the appeal. Let the documents, as produced,

be kept on record.

Mr. Chowdhury, learned advocate appearing for the

respondent duly assisted by Mr. Ali, learned advocate

opposes the prayer for extension of the interim order and

submits that no exceptional case has been made out by

the appellant for stay of execution of the money decree.

The respondent is suffering irreparable loss since he is

losing the interest pertaining to the said amount. In

support of such argument reliance has been placed upon a

judgment delivered in the case of Malwa Strips Private

Limited Vs. Jyoti Limited, reported in (2009) 2 SCC 426.

He informs that the respondent has also filed a

Cross Objection which has been registered as COT 114 of

2019.

In reply, Mr. Majumdar submits that till date neither

any affidavit-in-opposition has been filed by the

respondent to the stay application nor any application for

modification of the order dated 18 th November, 2019 has

been taken out by him.

Heard the learned advocates appearing for the

respective parties and considered the materials on record.

By the order dated 18 th November, 2019, the co-

ordinate Bench, taking into consideration the relationship

between the parties and the fact that the learned trial

court did not award any interest on the decreetal amount,

directed the appellant to deposit an unconditional bank

guarantee, issued by any nationalized bank covering the

decreetal amount. Appropriate reasons towards such

direction to deposit unconditional bank guarantee has

been detailed in the order dated 18 th November, 2019 and

as such, we are unable to accede to the prayer of the

respondent. The judgment delivered in the case of Malwa

Strips Private Limited (Supra) is also distinguishable on

facts.

Accordingly, the interim order granted on 18th

November, 2019 is extended till the disposal of the appeal.

The bank guarantee deposited by the appellant shall also

be kept renewed till the disposal of the appeal.

With the above observations, the application for

stay, being IA No.: CAN 1 of 2019 (Old No.: CAN 7127 of

2019) is disposed of.

Let the hearing of the appeal be expedited.

As Mr. Ali, learned advocate, has entered appearance

on behalf of the respondent, service of notice of appeal

upon him is dispensed with.

Lower court records be called for through Special

Messenger at the cost of the appellant. Such cost shall be

deposited by appellant within two weeks.

Immediately, after arrival of lower court records, the

office shall examine the same and, if found complete, shall

issue notice of arrival of lower court records to the learned

advocates appearing for the appellant and the respondent.

The appellant is directed to prepare requisite

number of informal paper books - printed, typewritten or

cyclostyled, as the case may be, out of Court and shall file

the same within four weeks from the date of service of

notice of arrival of lower court records.

All formalities regarding preparation of paper books

are dispensed with but the learned advocate for the

appellant is directed to incorporate all the relevant

documents in the informal paper books.

The Cross Objection, being COT 114 of 2019 shall

also be heard along with the present appeal and filing of

paper book in the Cross Objection is dispensed with.

A copy of the Cross Objection has been handed over

to the learned advocate appearing for the appellant in

Court today.

Liberty to mention upon filing of paper books in the

present appeal.

Urgent photostat certified copy of this order, if

applied for, be supplied to the parties, upon compliance of

all requisite formalities.

(Partha Sarathi Chatterjee, J.) (Tapabrata Chakraborty, J.)