Appeal against lower court order directing deposit of Rs.5,00,000/- was allowed by the single-bench division bench which found the order unsustainable on its face as competent court did not direct deposit.
The appeal is allowed and the order dated June 27, 1996 passed by the learned motion Judge is set aside.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO.769 OF 1996
IN
NOTICE OF MOTION NO.2867 OF 1992
IN
SUIT NO.3050 OF 1992
M/s.Fleming Shaw & Co.Pvt.Ltd.
carrying on business at 235,
Piramal Mansion, Dr. Dadabhoy
Naoroji Road, Bombay .. Appellant.
V/s.
1. Commercial Union Assurance
Company of Australia Ltd.,
having their office at 402,
Collins Street, Melbourne,
3001, Australia.
2. M/s.Associated Marine
Assurance Agents Pvt.ltd.,
(Incorporated in Victoria),
469, Collins St. Melbourne,
Australia.
3. M/s.Insimpex Corporation,
carrying on business at
Arcadia, 5th Floor, 195,
Nariman Point, Bombay 21.
4. The Reserve Bank of India,
having its Central Office
at Central Office Building,
Bombay - 400 023.
5. The British India Corpo-
ration Ltd., a Govt of
India Company incorporated
under the Companies Act,
having its registered
office at Southerland
House, 16/8, Civil Lines
Kanpur .. Respondents.
Mr.Chetan Kapadia with Mr.Darshan Mehta i/b. Dhruv
Liladhar & Co. for the appellant.
None for the respondents.
CORAM : R.M. LODHA &
2
J.P. DEVADHAR, JJ.
DATED : 10TH AUGUST, 2005.
ORAL JUDGMENT (Per R.M. Lodha, J.)
Heard Mr.Chetan Kapadia, the learned counsel
for the appellant. Nobody appears for the
respondents.
2. On June 9, 2004, we passed the following
order :
"The Court Associate informs us that
the names of the advocates appearing for the
respondents have been shown on board.
However, nobody appears for the respondents.
In the circumstances, we heard the learned
Counsel for the appellant. We also perused
the order dated 27th June, 1996 impugned in
the present appeal and the material
available on record.
2. The present appeal is at the instance
of original defendant No.3 aggrieved by the
order dated 27th June, 1996 passed by the
learned motion Judge directing the present
appellant to deposit a sum of Rs.5,00,000/-
either in this Court or in Kanpur Court.
3. Upon perusal of the impugned order,
we find that the said order is unsustainable
on its face. The reference to the facts
recorded in the impugned order itself shall
suffice and it is not necessary to
elaborately deal with the facts. In the
impugned order it is recorded that the
competent court namely Civil Judge, Kanpur
is seized of the dispute between the
parties. At the instance of the present
defendant No.2 who is plaintiff in Kanpur
Court, a temporary injunction has been
granted against the present appellant not to
remit the disputed sum of Rs.7,91,,214.38
ps. out of India. The learned motion Judge
observed in the impugned order that since
there is already a preventive order against
the present appellant from transferring the
amount of Rs.7,91,214.38 ps. to Australia,
3
no prejudice would be caused if the present
appellant is directed to deposit in this
court or in Kanpur Court and consequently
the learned motion Judge directed the
present appellant to deposit a sum of
Rs.5,00,000/- in the interest of justice
either before this Court or before Kanpur
Court. When the Kanpur Court which is the
competent Court is seized of the matter and
the said Court while restraining the present
appellant from remitting the amount of
Rs.7,91,214.38 ps. did not direct the
present appellant to deposit the said amount
or any part thereof in the Court, we hardly
find justification in the order of the
learned motion Judge, directing present
appellant to deposit the sum of
Rs.5,00,000/- before this court or before
Kanpur Court.
4. At this stage Ms.Indu Prashant,
advocate appears for respondent Nos.1 to 3
(original plaintiffs) and submits that on
behalf of the said respondents Mr.K.K.V.
Kurup is to argue the matter but because of
his ill-health, he is not in position to
attend the Court. If such prayer was made
at the time the case was called out, we
would not have heard the Counsel for the
appellant and considered the matter.
However, for the stated reason, we adjourn
the hearing of the appeal.
5. S.O. two weeks."
2. In our order dated June 9, 2004 we had
already indicated that there was no justification in
the order of the learned motion Judge directing the
present appellant to deposit a sum of Rs.5,00,000/-
before this Court or before the Kanpur Court.
However, the matter came to be adjourned as the
learned counsel appearing on behalf of respondent
Nos.1 to 3 submitted that Mr.K.K.V. Kurup who was to
argue the matter on behalf of the respondents was
unable to attend the Court due to his ill-health.
4
3. Thereafter, the matter came up before us on
June 24, 2004 but was adjourned by the following
order :
"Ms.Indu Prashant, learned counsel for
the respondent No.1 submits that Mr.K.K.V.
Kurup, Advocate for the said respondents who
is to argue the matter has not yet resumed
the work because of his ill health. She
prays for time. Learned counsel for the
appellants has no objection.
2. S.O. two weeks."
4. Then the matter came up before us on July
14, 2004 and was adjourned by the following order :
"Mr.K.K.V. Kurup, the learned counsel
for the respondent Nos.1 to 3 submits that
he is not feeling well even today and he
prays for some time.
2. Mr.Chetan Kapadia, the learned
counsel for the appellant has no objection.
3. S.O. one week."
5. Then the matter came up before us on August
18, 2004 but was adjourned. The appeal then came up
before us on June 25, 2005 and we adjourned the
appeal to July 27, 2005 by the following order :
"Mr.Chetan Kapadia, advocate appears
for the appellant. Nobody appears for the
respondent Nos.1,2 and 3.
2. We adjourn the hearing of the appeal
to 27.7.2005 and direct the advocate for the
appellant to inform the advocate for the
respondent Nos.1,2 and 3 that hearing of the
appeal has been fixed for 27.7.2005 and if
nobody appears on behalf of the respondent
5
Nos.1,2 and 3 on that date, the court may
proceed with the hearing of the appeal
exparte.
3. Stand over 27.7.2005."
6. On July 29, 2005 when the appeal came up
before us none appeared for the respondents but we
adjourned the appeal for August 8, 2005.
7. The learned counsel for the appellant
submits that the advocate for the respondents has
been informed of the hearing of the appeal.
8. For want of appearance of respondent Nos.1
to 3, the appeal deserves to be proceeded exparte and
we proceed accordingly.
9. We have already indicated the reasons in our
order dated June 9, 2004 that justify the setting
aside of the order dated June 27, 1996 passed by the
learned motion Judge.
10. For the reasons that we have already
indicated in our order dated June 9, 2004, the appeal
deserves to be allowed. We, accordingly, allow the
appeal and set aside the order dated June 27, 1996.
Since the respondents have not chosen to appear, no
costs.
6
(R.M. LODHA, J.)
(J.P. DEVADHAR, J.)
2 issues framed by the court
Whether the appeal challenging the order directing deposit of funds deserves to be allowed.
Whether the order directing deposit of funds is sustainable when the competent court did not direct same.
M/s.Fleming Shaw & Co.Pvt.Ltd.
Commercial Union Assurance Company of Australia Ltd.
M/s.Associated Marine Assurance Agents Pvt.ltd.
M/s.Insimpex Corporation
The Reserve Bank of India
The British India Corporation Ltd.
R.M. LODHA
J.P. DEVADHAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court