JUDGMENT S.C. Dharmadhikari, J. - This is a Notice of Motion for stay. 2. The Appeal has been admitted. 3. The Appellant-Original Defendant No.1, by this Notice of Motion, prays that pending the hearing and final disposal of the present Appeal, the implementation and operation of the judgment and decree dated 5th January, 2018 in Suit No.2205 of 1997 be stayed. 4. On such a Notice of Motion, on the earlier occasion i.e. 30th August, 2018, the following order was passed:- "1 When this Notice of Motion was argued for some time, Mr. J.P. Sen, learned senior counsel appearing on behalf of the appellant/orig. defendant No.1, on instructions, states that without prejudice to the rights and contentions of the appellant and equally that of the respondents, a sum of Rs. 4,00,00,000/- (Rs.Four Crores) would be deposited in this Court by the appellant within two weeks. 2. We accept this statement and place this Notice of Motion after two weeks. Needless to clarify that to enable the appellant to deposit this sum, no steps in furtherance of the decree shall be initiated and if initiated by the plaintiff/decree holder, that decree shall not be executed and enforced till then. 3 Stand over to 14th September 2018." 5. After report by the Registry that the condition imposed in the earlier order has been complied with, that this Notice of Motion has been listed for hearing and final disposal. On this Notice of Motion, we have heard Mr. Sen, the learned Senior counsel in support and Mr. Aspi Chinoy, the learned Senior counsel on behalf of the Original Plaintiffs in opposition. 6. In the affidavit in support of this Notice of Motion, it is urged by the Applicant that it has made out a strong prima facie case, the balance of convenience is in its favour and it will suffer great harm and irreparable injuries in the event any further sum is directed to be brought in or any condition is imposed to secure the balance decreetal amount. 7. 7. Our attention has been invited by both counsel to Order 41, Rule 1 sub-rule 3 and Order 41, Rule 5 of the Code of Civil Procedure, 1908 and particularly the condition in Order 41, Rule 5 sub-rule 5 which says that notwithstanding anything contained in the foregoing sub-rules, where the Appellant fails to make the deposit or furnish the security specified in sub-rule 3 of rule 1, the Court shall not make an order staying the execution of the decree. 8. This, according to Mr. Chinoy is a mandate. There may be a discretion insofar as Order 41, Rule 1 sub-rule 3 and by the Bombay Amendment introducing a proviso thereto. However, that does not enable the unsuccessful Defendant/Appellant to say that there should be either a unconditional stay of the execution of a money decree or that the rights and equities should be balanced by substantial deposit and for the rest of the sum the security to the satisfaction of this Court. It is for the Court to take a prima facie view and the Judgment-Debtor-Defendant cannot dictate a particular course of action favourable to him is Mr. Chinoy''s argument. 9. Reliance is placed firstly on a Division Bench judgment of t his Court by Mr. Sen and rendered in the case of Ecopack India Paper Cup Pvt Ltd v. Sphere International reported in 2018 SCC Online Bom 540 (Appeal No. 101 of 2018 decided on March 14, 2018) . 10. Mr. Sen would submit that in this case the Division Bench found that the arbitral Tribunal made the interim award. There was a sum directed to be paid. However, while the Award was made, there was no reference whatsoever to the Respondent''s contention. The case of the Respondent in the Written Statement undoubtedly was required to be considered by the arbitral Tribunal in its entirety and thereupon it would have made an interim award. There is no reasoning whatsoever in the interim award in rejecting the Respondent''s case as made out in the reply opposing the interim award. It is therefore that the learned Single Judge was justified in holding that the arbitral Tribunal has not considered the entire case as pleaded in the Written Statement and the alleged admission was capable of being explained. That is how in further paragraphs 9 and 10, reference was made to the Supreme Court judgment, in dismissing the Appeal. It is therefore that the learned Single Judge was justified in holding that the arbitral Tribunal has not considered the entire case as pleaded in the Written Statement and the alleged admission was capable of being explained. That is how in further paragraphs 9 and 10, reference was made to the Supreme Court judgment, in dismissing the Appeal. The Appeal was directed against that order of the learned Single Judge of this Court allowing a Notice of Motion and granting unconditional stay to the execution of the interim award. 11. Mr. Sen would submit that in making the observations as made in paragraphs 9 and 10 of this judgment, the Division Bench noted that a order passed by this Court in Times Global Broadcasting Company Limited v. Parshuram Babaram Sawant (2011) 113 (6) Bom. L. R. 3801, was relied upon. 12. Mr. Chinoy, on the other hand, would submit that in the order passed in the case of Parshuram Babaram Sawant (supra), reference was made to a judgment of the Supreme Court in the case of Sihor Nagar Palika Bureau v. Bhabhlubhai Virabhai and Company reported in (2005) 4 SCC page 1. Mr. Chinoy, the learned Senior Counsel therefore, would submit that the deposit of Rs. 4 Crores in the backdrop of the decree which directs payment of money will not suffice. That is wholly insufficient to protect the Decree holder''s interests or rather balance the rights and equities. 13. It is upon such a Notice of Motion that we have heard both sides and perused the judgments relied upon. It is evident from the judgment in the case of Sihor Nagar Palika Bureau (supra) that the statutory body had approached the Hon''ble Supreme Court challenging the order of a Division Bench in a First Appeal. The First Appeal was admitted. The First Appeal challenged a money decree passed in favour of the Respondent. The Respondent was appointed as an agent to collect octroi on behalf of the Nagar Palika on the terms and conditions set out therein. That agency/contract was terminated which resulted in filing of a suit and consequently the money decree. 14. The statutory body moved an application seeking stay on execution of the money decree. While admitting the Appeal, a stay was granted on the condition that the Appellant to deposit an amount of Rs. 8,78,925/- with 8% interest on or before 4th November, 2003. 14. The statutory body moved an application seeking stay on execution of the money decree. While admitting the Appeal, a stay was granted on the condition that the Appellant to deposit an amount of Rs. 8,78,925/- with 8% interest on or before 4th November, 2003. The order was sought to be varied by the statutory authority, the Appellant/ Petitioner before the Supreme Court. It moved an application for variation. That application was dismissed on 4th November, 2003. Thereafter, the statutory body approached the Supreme Court and while the Supreme Court issued the notice on the Appeal, it directed that the execution shall remain stayed subject to the statutory body furnishing security of immovable property to the satisfaction of the trial court in place of depositing the decreetal amount in cash as directed by the High Court. 15. It is in these circumstances that the observations in paragraphs 6 to 8 and heavily relied upon have been made. While noting rival contentions, the Hon''ble Supreme Court was aware of the fact that it is a statutory body, namely a Nagar Palika approaching it and therefore public interest was also to be taken into consideration. It so took it and held that the order that it made, while issuing notice on the Appeal on 30th January, 2004 sufficiently protects the rights and balances the equities. 16. In Times Global Broadcasting case, in the peculiar facts it was found that the Respondent filed a suit and claimed damages. That was on account of defamation. A broadcasting channel carried a story and referred to the role of certain judicial officials/presiding officers. The story was on the topic of integrity in the institution of judiciary. While carrying such a story, it referred to a third person. However, it displayed the photograph of the Respondent/Plaintiff. That being displayed and despite requests, there was no apology or corrective steps that the matter was then made a subject of the civil suit. It is in these circumstances that the decree came to be passed awarding Rs. 100 Crores as damages. That decree was sought to be stayed and by the Defendants unconditionally whereas the Plaintiff opposed such a request. An order was made relying on the discretion vesting in this Court. 17. It is in these circumstances that the decree came to be passed awarding Rs. 100 Crores as damages. That decree was sought to be stayed and by the Defendants unconditionally whereas the Plaintiff opposed such a request. An order was made relying on the discretion vesting in this Court. 17. We are therefore mindful of the powers that are conferred in the Court and while deciding an application seeking stay of enforcement and execution of a money decree. That power vests in the Court passing a decree as also in the Court seized of the Appeal. Even during the pendency of the Appeal, the Court passing the decree can on a request made to it, stay the execution of decree but while it does so, it must be guided by Order 41, Rule 5 sub-rule 5 of the Code of Civil Procedure, 1908. 18. Thus, it is a question of facts and circumstances in each case and then to apply the governing principles. 19. In the instant case the learned Single Judge pronounced his judgment and decree in Suit No. 2205 of 1997. According to the learned Single Judge, that Suit was filed for a declaration that the Plaintiffs as pledgors and Defendant No.1 as a Pledgee had reached an understanding for transfer of the pledged securities which are shares of Defendant No.2 in favour of Defendant No.1 at an agreed sum and for payment over to Plaintiffs. That on accounts being taken, the amount lying in excess after satisfaction of the outstanding dues be paid, would therefore be a part and parcel of this relief. There is an alternate relief in the nature of redemption of the pledged securities shares of Defendant No.2 on the basis that the sale thereof by Defendant No.1 was null and void. In paragraph 1 of the judgment, the learned Judge has clarified that the main case has been abandoned by the Plaintiffs in its entirety and they pressed only the alternative plea for redemption. No relief is sought against Defendant No.2. 20. Thereafter, the learned Judge proceeds to summarize the pleadings. There was a loan which was sought by Plaintiff No.1 from Defendant No.1. That loan came to be sanctioned on 11th July, 1995. Thereafter, an agreement of pledge dated 12th July, 1995 to secure an advance of Rs. 5 Crores was entered into and executed. 20. Thereafter, the learned Judge proceeds to summarize the pleadings. There was a loan which was sought by Plaintiff No.1 from Defendant No.1. That loan came to be sanctioned on 11th July, 1995. Thereafter, an agreement of pledge dated 12th July, 1995 to secure an advance of Rs. 5 Crores was entered into and executed. The Plaintiffs pledged shares of Defendant No. 2 and also executed the demand promissory note dated 12th July, 1995 in the sum of Rs. 5 Crores. The Power of Attorney was also executed on that date authorizing Defendant No.1 to sell pledged securities as deemed fit. 21. After that it is claimed that an additional advance of Rs. 5 Crores on the same terms and conditions was sought. The second transaction of Rs. 5 Crores comprised of a direct disbursement of Rs. 1.3 Crores while a sum of Rs. 3.70 Crores was paid on behalf of the Plaintiffs to Reliance Share and Stock Broking Limited. Then it is stated that there was a default in payment of interest by way of post dated cheques. There was also the due date of the second loan of Rs. 5 Crores i.e. dated 17th January, 1996. There was an extension sought and it is claimed that this amount was not received. Therefore, the first Defendant initiated negotiations for sale of the shares pledged. It is claimed that the notice of intended sale was express. The postdated cheques were also dishonoured. The extension of time was then discussed by the learned Judge and he says that Defendant No.1 namely Appellant before us could not have demanded the interest @ 36% per annum. Apart therefrom, the outstanding sum was referred and post-dated cheques were to be forwarded so as to repay the loan in installment. After referring to these two events, it is claimed that the Plaint primarily proceeded on the oral arrangement between the Plaintiffs and one Sadashiv Rao, the alleged appropriation of the pledged securities and alleged obligation of Defendant No.1 to render accounts on that basis and to pay over the alleged surplus. Prayer clauses (a) and (e) were relatable to this primary case set up by the Plaintiffs. Prayer clause (e) was for payment over to Plaintiff No.1 of specified amount alleged to be due on accounts being drawn on the basis that the shares had been appropriated at the rate of Rs. 310/- 22. Prayer clauses (a) and (e) were relatable to this primary case set up by the Plaintiffs. Prayer clause (e) was for payment over to Plaintiff No.1 of specified amount alleged to be due on accounts being drawn on the basis that the shares had been appropriated at the rate of Rs. 310/- 22. The Appellant before us disputed the case of the Plaintiff on both primary/main and alternative plea. It contended inter alia that there was no oral agreement as alleged and that in any event the said Sadashiv Rao was not authorized to enter into said alleged agreement and that on accounts being taken, a certain sum and 36 shares which were as yet unsold were liable to be handed over to the Plaintiffs. The said amount was deposited by Defendant No.1 with the Prothonotary and Senior Master and 36 unsold shares have been handed over to the Plaintiffs. 23. It is on such a case that the learned Single Judge drew as many as nine issues and the burden insofar as issue nos.1 to 4 was that on the Plaintiff whereas issue nos. 5 to 9, the burden was on Defendant No.1. The learned Judge says in the judgment that issue nos.1, 2, 5 and 6 relate to the main plea set up by the Plaintiffs while issue nos. 4, 7 and 8 relate to the alternative plea. Once the learned Judge has referred to the abandonment of the main plea and falls back on their alternate plea which was then considered, the learned Judge was of the opinion that the Plaintiffs having abandoned their main plea including accounts, he is not considering issue nos.1, 2, 5 and 6. Thus, some of the issues in relation to which the burden was on Defendant No.1, the learned Judge thought it fit not to deal with them, as well. 24. Then in relation to issue no.3, the learned Judge in the judgment says that this suit was filed initially on the footing that 3,87,000 equity shares of Defendant No.2 were pledged by the Plaintiffs with Defendant No.1 to secure an advance of Rs. 10 Crores. The figure was then revised. The prayer/plaint was also amended and paragraph 10 was incorporated therein. 10 Crores. The figure was then revised. The prayer/plaint was also amended and paragraph 10 was incorporated therein. In that, it was stated that in the first week of July 1996, Defendant No.1 had called for additional security and accordingly 400 shares of Defendant No.2 company were handed over by Plaintiff No.1 to Defendant No.1. Defendant No.1 says that only 3,87,000 shares were pledged and that all but 36 of those shares have been sold in exercise of its rights as a pledgee. In respect of 400 shares, the Plaintiffs'' case is then reproduced in paragraph 29 but the learned Judge holds that they have not produced any letter by which Defendant No.1 called upon the Plaintiffs to furnish this additional security. The learned Judge refers to the oral and documentary evidence. He proceeds to appreciate it and then holds that 400 shares had been handed over by the Plaintiffs to Defendant No.1 as additional security. 25. Then, in relation to issue nos.4, 7 ,8 and 9 the learned Judge proceeds to set out the rival cases. It is then, the learned Judge appreciates and appraises the oral and documentary evidence. The learned Judge notes the rival arguments, as well. It is very evident from the judgment that on these issues the contentions are fairly detailed. Reliance was placed by both sides on several judgments, as well. Pertinently, in paragraph 43 of the judgment under challenge, the learned Judge holds that at no point in time did the Plaintiff object to such sale or contend that the sale was illegal or invalid on account of want of notice. On the contrary, the Plaintiffs repeatedly asserted that Defendant No.1 had become the owner of the shares and was free to deal with the shares as it pleased. Having taken this contention till the date of filing of the suit and in the suit itself and having actively affirmed the freedom of Defendant No.1 to sell the shares, the learned Single Judge holds that the Plaintiffs cannot be heard to contend that they have not received notice of such sale or that the sale is invalid on that alleged account. 26. In paragraph 45, the learned Single Judge holds that the case of redemption is premised on the alleged illegality in the sale of the pledged securities by Defendant No.1. 26. In paragraph 45, the learned Single Judge holds that the case of redemption is premised on the alleged illegality in the sale of the pledged securities by Defendant No.1. If sale is perfectly valid and not vitiated, then, the redemption of the pledged securities is not the relief to which the Plaintiffs are entitled. 27. The learned Judge also says that before filing of the plaint, the Plaintiffs have not communicated to Defendant No.1 of its intention to redeem 1,61,486 shares or offer to repay any amount against redemption of pledged shares. The Plaintiffs'' argument on that score has been rejected. It has been rejected on the ground that there is vacillation by the Plaintiffs in relation to its own case. The judgment up to paragraph 50 therefore goes on to consider the cases which remained for consideration and the cases and the relief abandoned or given up by the Plaintiffs. 28. It is thereafter that the learned Single Judge refers to the case of Defendant No.1 in relation to the credit amount of the loan account of Plaintiff No.1. The interest at the rate of 36% could not have been levied, is the finding. The learned Single Judge then holds that insofar as the interest at monthly rests or any other rest was not demanded by Defendant No.1. Hence, he is of the view that Defendant No.1 is not entitled to interest at monthly rests or otherwise additional interest. 29. Thus, the sale of any pledged share in excess of what was required to recover the amount due would be illegal. 30. For that the correct figures were not available with the learned Single Judge. It is in these circumstances that he placed the matter so as to request the counsel on both sides to provide a statement. That is in relation to the amount payable on the basis of interest calculated @ 24% per annum with simple interest. How many pledged shares were sold beyond the number that was required to be sold to recover the amount advanced less 36 shares returned by Defendant No.1 to Plaintiff No.1. Thereafter what would be the excess shares sold. The statements were not adidem. Both sides supplied different statements. The learned Single Judge in paragraph 58 specifically holds that he would proceed on the basis of the statement given by Defendant No.1 and also the calculations therein. Thereafter what would be the excess shares sold. The statements were not adidem. Both sides supplied different statements. The learned Single Judge in paragraph 58 specifically holds that he would proceed on the basis of the statement given by Defendant No.1 and also the calculations therein. In the circumstances, the learned Single Judge refers to issue no.9. He, therefore, faults Defendant No.1 for its calculation. He then says that Defendant No.1 had wrongfully detained shares after the entire amount calculated @24% interest had been recovered. Hence, extra shares that Defendant No.1 sold by calculating it at the rate of 36% per annum or its value had to be returned. 31. Now on this count, the learned Single Judge finds that though there are no pleadings, relief could not be refused on technical and pedantic grounds. Once the substantive prayers and the cause for justice is borne out in the pleadings, then, the Court would be justified in moulding the relief, is the view. 32. He was therefore of the opinion that the decree should be to direct delivery of 11.49.680 fully paid equity shares, in view of sub-division and bonus issue of shares of Defendant No.2 company, which Defendant No.1 may purchase from the market and deliver to the Plaintiffs or in the alternative, the amount/sum equivalent to value of 11.49.680 fully paid equity shares on the date of the decree or payment whichever is higher, should be paid. 33. Prima facie, to our mind, such a decree has been passed irrespective of the objection of the Appellants of lack of proper pleadings and particulars. The alternate case set up by the Plaintiffs has been accepted. That is after rejecting the calculations furnished by Defendant No.1. Insofar as the calculations of the Plaintiffs are concerned, the learned Single Judge, with greatest respect and prima facie, has not derived the figures after giving an opportunity to the Appellants to dispute the statement of the Plaintiffs. There appears to be a prima facie case of inconsistency in the pleadings. 34. To our mind, therefore, once the Appeal is admitted, this is not a fit case for exercising the discretion entirely in favour of the decree holder. This is a case where the Defendant has been called upon to pay a sum over and above the amount which it was entitled to recover and has recovered by selling the pledged shares. To our mind, therefore, once the Appeal is admitted, this is not a fit case for exercising the discretion entirely in favour of the decree holder. This is a case where the Defendant has been called upon to pay a sum over and above the amount which it was entitled to recover and has recovered by selling the pledged shares. To our mind, therefore, this is a clear issue which would have to be gone into and probed further, more-so, when the Appeal is pending. In the circumstances, we are of the view that the amount that is deposited in this Court would sufficiently protect the interest of the decree holder. 35. We are of the view that without prejudice to the rights and contentions, in the event the decree holder desires to withdraw this sum of Rs. 4 Crores pending the Appeal, he can do so. The Plaintiff-Decree holder can withdraw this sum by furnishing a bank guarantee of a Nationalized Bank as a security. This will be without prejudice to the rights and contentions of both sides. 36. The Notice of Motion is made absolute in terms of prayer clause (a) subject to above. No costs.