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2000 DIGILAW 471 (CAL)

ASHOK KUMAR GUPTA v. MUDASSAR MALLICK

2000-09-12

TARUN CHATTERJEE

body2000
T. CHATTERJEE, J. ( 1 ) -THIS appeal has been preferred against the judgment and/or order dated April 4, 2000, passed by a learned Judge of this Court, whereby an application made by the decree-holders (the respondents No. 1, 2 and 3 in this appeal) for withdrawal of the decretal amount to the extent of Rs. 30,00,000/- lying with their Advocate-on-record deposited in a Nationalised Bank was allowed. It is not in dispute that a decree for the said sum of Rs. 30,00,000/- was passed by the trial Court by way of judgment upon admission. Against the said judgment and decree, an appeal has preferred by the judgment debtor/appellant, being A. P. D. No. 81 of 1998. The said appeal is now pending decision. In the said appeal, an application for stay of the said judgment and decree was filed at the instance of the judgment debtor/appellant and by an Order dated February 20, 1998, a Division Bench of this Court passed an order of stay of execution of the decree for a limited period. The Division Bench further directed that if bank guarantee of a Nationalised Bank to the extent of the decretal amount was furnished by the judgment debtor/appellant in favour of the Registrar, Original Side of this Court, the execution of the decree impugned would remain stayed until disposal of the appeal. Thereafter extensions to furnish such bank guarantee were prayed for at the instance of the judgment debtor/appellant and extensions were granted from time to time. Finally, by an Order dated April 29, 1998, the prayer for further extension of time to furnish the bank guarantee was rejected on the ground that despite extension having been granted, the judgment debtor/appellant had failed to furnish the bank guarantee as was directed. So, from the said Order dated April 29, 1998, it is evident that there is no order of stay granted by the Appellate Court for execution of the decree. Therefore, there is no reason why the decree-holders should not be permitted to proceed with the execution case. But there is another aspect of the matter. So, from the said Order dated April 29, 1998, it is evident that there is no order of stay granted by the Appellate Court for execution of the decree. Therefore, there is no reason why the decree-holders should not be permitted to proceed with the execution case. But there is another aspect of the matter. ( 2 ) WHEN the decree-holders proceeded to execute the aforesaid money-decree passed on the basis of a judgment upon admission, a learned Judge of this Court by an Order dated June 9, 1998, passed on an application made by the Judgment debtor in the execution case, directed the judgment debtor to deposit a sum of Rs. 10,00,000/- with the Advocate-on-record of the decree-holders, Mr. Avijit Guha Roy, within a fortnight from that date, and that in default of depositing the said sum of Rs. 10,00,000/- as directed, the said application of the judgment debtor would stand rejected and the decree-holder would proceed with the execution case. Feeling aggrieved by the said Order, the Judgment debtor/appellant preferred an appeal. A Division Bench of this Court, consisting of Shyamal Kumar Sen (as His Lordship then was) and Nure Alam Chowdhury, JJ, by Order dated June 24, 1998, disposed of the said appeal, by passing the following order :-"it is agreed by the parties the entire matter including the interlocutory application will be disposed of, provided the appellant pays Rs. 10 lakhs in cash and further Rs. 20 lakhs by bank guarantee. Out of the sum of Rs. 10 lakhs that will be paid in cash the appellant will pay Rs. 5 lacs within 3rd July, 1998, to the Advocate-on-record of the respondent/decree-holder and the balance sum of Rs. 5 lacs will be paid by 15th July, 1998. The appellant will furnish bank guarantee for Rs. 20 lacs within two weeks from date, subject to satisfaction of the Registrar, Original Side of this Court. Reference will be proceeded expeditiously in the matter. The Registrar, O. S. , will take steps to complete the reference as expeditiously as possible so that the same may be completed within the period as aforesaid. In default of compliance of any of the directions as aforesaid, the appeal will stand dismissed with costs and all interim orders will stand vacated. The Registrar, O. S. , will take steps to complete the reference as expeditiously as possible so that the same may be completed within the period as aforesaid. In default of compliance of any of the directions as aforesaid, the appeal will stand dismissed with costs and all interim orders will stand vacated. There will be an unconditional stay of the decree till 3rd July 1998 and the stay will continue if the order is carried out as directed. " ( 3 ) IT is now not in dispute that the said Order dated June 24, 1998, passed by the Division Bench of this Court has been duly complied with. The decretal amount is now lying with the Advocate-on-record of the decree-holders. When the money was so lying with the Advocate-on-record of the decree-holders, an application was made by the decree-holders to withdraw the aforesaid money together with all interest accrued thereon. The said application was allowed by the learned single Judge of this Court by passing the impugned judgment and order, against which the instant appeal has been preferred by the judgment debtor. ( 4 ) WE have heard Mr. Abrajit Mitra, learned counsel appearing for the judgment debtor/appellant, and Mr. Ajoy Kumar Chatterjee, learned counsel appearing for the decree-holders/respondents No. 1, 2 and 3 herein. We have considered the judgment and order under appeal in detail and also the previous Orders passed by the Division Bench of this Court from time to time as well as a previous order passed by a learned single Judge of this Court. After going through the facts as stated hereinabove, we are of the view that there is no reason to interfere with the order impugned in this appeal. It is not in dispute that a decree by way of judgment upon admission was passed in the year 1997 in favour of the plaintiff/decree-holders/respondents No. 1, 2, and 3, against which an appeal has been preferred, in which on an application, stay was initially granted on certain terms and conditions but finally the order of stay was vacated by a Division Bench of this Court as noted hereinabove. Since the said appeal itself arises out of a money-decree and in view of the fact that by virtue of the order passed earlier by the Division Bench, as on today there has been no stay of the money-decree subsisting, we do not think that the decree-holders/respondents No. 1, 2 and 3 will not be entitled to withdraw the money which is lying with their Advocate-on-record, subject to the condition that they shall furnish bank guarantee to the extent of the decretal amount to the satisfaction of the Registrar, Original Side of this Court. That, of course, is the order passed by the learned single Judge. ( 5 ) MR. Mitra on behalf of the appellant has mainly raised a question as to whether the trial Court can modify an order of the Appellate Court. According to Mr. Mitra, in view of the fact that by the Order dated June 24, 1998, passed by the Division Bench of this Court, consisting of Shyamal Kumar Sen (as His Lordship then was) and Nure Alam Chowdhury, JJ, by which stay of the money-decree was granted, it was not open to the learned trial Judge to modify the said Order of the Division Bench by permitting the decree-holders/respondents No. 1, 2 and 3 to withdraw the aforesaid decretal amount upon bank guarantee for the amount being furnished. In order to answer this question as raised by Mr Mitra, we have carefully perused the said Order dated June 24, 1998, passed by the Division Bench and after going through the same, we find that the execution case was directed to be stayed on the decretal amount being deposited in the manner indicated therein. It does not appear to us that the Appellate Court has passed any order directing that the said amount cannot be withdrawn by the decree-holders without the permission of the Appellate Court. In any view of the matter, we do not find any reason to interfere with the Order of the trial Court, only because an order was passed by the Appellate Court in an appeal against another interlocutory order, which was to remain in force until disposal of the execution case. That apart, we are of the view from the materials on record before us that it must be said that the conduct of the judgment debtor/appellant was not at all bonafide. That apart, we are of the view from the materials on record before us that it must be said that the conduct of the judgment debtor/appellant was not at all bonafide. Only after the decree by way of judgment upon admission was passed, the judgment debtor/appellant woke up from his sleep and filed a counter-claim which is now pending. On perusal of the said counter-claim, we find that it was simply a claim for damages. It is well settled that for the purpose of passing a decree for damages the Court has to consider the cases of the respective parties and also the evidence to be adduced by them in support of such cases. Therefore, the question of granting stay of execution of the decree till the counter-claim is decided, is an afterthought, according to us, and, therefore, not a bonafide prayer made by the appellant. ( 6 ) MR. Mitra, however, has relied on certain decisions of this Court, where it has been held that the Court of first instance has no jurisdiction to modify an order of the Division Bench. We do not think that there is any dispute on this principle and in view of the discussions made hereinabove, we do not go into that question whether the trial Court had at all intended to modify the Order of the Division Bench passed earlier. ( 7 ) FOR the reasons aforesaid, there is no merit in this appeal. Accordingly, the appeal is dismissed. ( 8 ) IT will be open to the decree-holders/respondents Nos. 1, 2 and 3 herein to withdraw the decretal amount together with all interest accrued thereon lying with their Advocate-on-record, Mr. Avijit Guha Roy, upon furnishing bank guarantee for the like amount by them to the satisfaction of the Registrar, Original Side of this Court. ( 9 ) AFTER the money is released as directed above to the decree-holders/respondents Nos. 1, 2 and 3, Mr. Avijit Guha Roy, the Advocate-on-record of the decree-holders, who was appointed as Receiver to hold the same, shall stand discharged. Filing of accounts by the Receiver stands dispensed with. There will be no order as to costs. Let xerox Certified copy of this Judgment be supplied to the parties expeditiously, in accordance with the Rules of this Court. Avijit Guha Roy, the Advocate-on-record of the decree-holders, who was appointed as Receiver to hold the same, shall stand discharged. Filing of accounts by the Receiver stands dispensed with. There will be no order as to costs. Let xerox Certified copy of this Judgment be supplied to the parties expeditiously, in accordance with the Rules of this Court. The Registrar, Original Side of this Court, the Receiver and all parties shall act on a signed copy of the Minutes of the operative part of this judgment upon usual undertaking. I agree. Appeal dismissed