Sarat Chatterjee And Co. (Vsp) ... vs Sri Munisubrata Agri ...
2023 Latest Caselaw 3050 Cal/2

OD-14
                                  ORDER SHEET
                        IN THE HIGH COURT AT CALCUTTA
                         Ordinary Original Civil Jurisdiction
                                  ORIGINAL SIDE

                                 IA NO. GA/1/2023
                                         In
                                    AP/265/2023

            SARAT CHATTERJEE AND CO. (VSP) PRIVATE LIMITED
                                VS
             SRI MUNISUBRATA AGRI INTERNATIONAL LIMITED
         (FORMERLY KNOWN AS LMJ INTERNATIONAL LTD.) AND ANR


  BEFORE:
  The Hon'ble JUSTICE MOUSHUMI BHATTACHARYA
  Date : 18th October, 2023.

                                                                             Appearance:
                                                            Mr. Tilak Kr. Bose, Sr. Adv.
                                                         Mr. Reetobroto Kr. Mitra, Adv.
                                                          Ms. Suchismita Ghosh, Adv.
                                                         Mr. Pradip Kr. Sarawagi, Adv.
                                                                     ...for the petitioner

                                                                Mr. S.N. Mitra, Sr. Adv.
                                                                Mr. D.N. Sharma, Adv.
                                                                   Mr. Ankan Rai, Adv.
                                                                    Mr. S.R. Saha, Adv.
                                                                 ...for the respondents

The Court:- The award-debtor who was also the petitioner in

AP/265/2023 seeks modification of the judgment passed by this Court on 1st

September, 2023. The modification prayed for is to the extent of permitting the

award-debtor to secure the entire awarded amount by way of one or more bank

guarantees. Before the Court proceeds any further, the context to the

modification prayed for should be stated.

AP/265/2023 was an application of the award-debtor (who is the

applicant before the Court now) for stay of an award dated 14th January, 2023.

One of the arguments made by the award-debtor before the Court was that

there was no requirement for the award-debtor to furnish security for stay of

the award since the award-holder was already secured in terms of a Division

Bench order dated 29th July, 2015.

The Court rejected this argument and directed the award-debtor to

furnish security to the extent of Rs.18,21,74,768.50/-, half of which was to be

deposited by way of cash and the other half by way of bank guarantee. Both

were to be deposited with the Registrar, Original Side of this Court within 8

weeks from the date of the judgment. The 8 weeks will expire on 27th October,

2023. The award-debtor now seeks modification of the judgment to the extent

of being permitted to deposit the entire money by way of one or more bank

guarantees.

Learned counsel appearing for the award-holder objects to any order

being passed on the ground that the application is in the nature of review and

that the facts/grounds pleaded were before the Court as on 1st September,

2023. Counsel further submits that the award-debtor has not disclosed any

new grounds for seeking an order of modification.

Upon considering the submissions made on behalf of the parties, this

Court is of the view that even if the present application is taken to be one

under Order 47 Rule 1 of The Code of Civil Procedure, 1908, the tail end of

Rule 1 permits the Court to grant a prayer for review on any other sufficient

cause which the Court may deem fit. Further, Section 36(2) and (3) read with

first proviso are indifferent to the form of security which is to be put in by the

award-debtor for stay of operation of the award. The Court will only see

whether the award-holder is secured to the extent of the awarded amount in

the case of an award for money. There are several decisions which have held

that an award-debtor may be called upon to secure the awarded amount not

only by way of money but in other forms of security which appear to be

satisfactory to the Court.

The Court sees no impediment in allowing the prayer in the application

particularly since the award-debtor undertakes to comply with the directions

contained in the judgment within the time specified with the change restricted

to depositing the entire amount by way of one or more bank guarantees.

The award-holder will be at liberty to seek appropriate orders at a later

stage.

GA/1/2023 is accordingly allowed and disposed of by directing the

award-debtor to secure 50% of the amount by way of a bank guarantee within

27th October, 2023 and the other 50% within 28th November, 2023.

The first line of the paragraph of the judgment dated 1st September, 2023

should read as "The Division Bench came to a finding that the issue whether

the award-holder had sold 10,000 MTs of Met Coke to Balaji is to be decided on

trial ... the price of the said goods."

The award-debtor will be at liberty to furnish the entire amount within

the later date, i.e., 28th November, 2023 by way of one or more bank

guarantees.

Since affidavits have not been called for, the allegations contained in the

application are deemed not to have been admitted.

(MOUSHUMI BHATTACHARYA, J.)

T.O.

A.R.(C.R.)