Partly allowed

Bakulesh D. Sanghavi v. Hiralaxhmi D. Sanghavi and 3 Ors.

Bombay HC10 Apr 2013JO/32/2013

Case brief

AI extract

What is this about?

This judgment addressed the refund of deposits made by respondents under an appellate order set aside by the Supreme Court. The Court held that due to the doctrine of merger, the lower court's ad-interim order was also set aside, allowing the withdrawal of deposits. An exception was ordered delaying the refund process.

What did the court decide?

The Prothonotary directed not to refund deposited amounts for two weeks, while allowing withdrawal under the Judge's Order once the freeze period ends.

Bakulesh D. Sanghavi Vs Hiralaxhmi D. Sanghavi… — Civil Procedure and Limitation | Bombay HC (2013)

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JO.32/13-S.2419/2011(3)

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mnm

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CIVIL APPELLATE JURISDICTION

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JUDGES ORDER NO. 32 OF 2013 IN

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SUIT NO. 2419 OF 2011

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Balukesh Dhirajlal Sanghavi Vs.

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Hiralaxmi Dhirajlal Sanghavi

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...Plaintiff

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...Defendants

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Mr. Pradeep Sancheti a/w. Purshit Jain and Kunal Parekh i/b. Thakore Jariwala & Associates for Plaintiff

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Mr. Robin S. Jaisinghani i/b. Jacinta D'Silva for Defendant Nos. 2 & 4

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CORAM : MRS. ROSHAN DALVI, J. DATED : 10^TH APRIL, 2013

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P.C. :

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A Judge's Order is taken out for refund of the amount deposited by defendants 2 and 4 in compliance of the order dated 12^th October, 2011 passed by this Court as modified by the Appeal Court which has been set aside by the Supreme Court.

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The application of the plaintiff that the order has not been set aside by the Supreme Court has been dismissed. The order of the Appeal Court is, therefore, set aside by the Supreme Court.

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The order of this Court was two fold:

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(a) An order of the usual injunctions.

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(b) An order of deposit per month.

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JO.32/13-S.2419/2011(3)

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The order of the Appeal Court which was by way of modification, was also two fold.

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(a) An order of the usual injunctions expecting the creation of licence.

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(b) An order of the deposit per month less taxes.

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This Court's order merged in the Appeal Court order. The Appeal Court order was set aside. Hence upon the doctrine of merger this Court's order also would stand set aside.

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It was contended by the plaintiff that it was not. That was because the plaintiff contended that merely because the Appeal Court order was set aside this Court's order cannot be deemed to be set aside. The analogy given by the Counsel on behalf of the plaintiff is that if this Court decrees the suit, the Appeal Court sets aside the decree and the Supreme Court sets aside the appeal order, the decree would not stand set aside. It would stand confirmed. That is absolutely correct, but that does not call in the doctrine of merger because the initial order has been reversed and the reversing order is again reversed. When an initial order is not reversed, but modified or confirmed the doctrine of merger would certainly apply.

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It is in view of this contention of the plaintiff that the plaintiff

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3 JO.32/13-S.2419/2011(3)

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was directed to get clarified from the Supreme Court whether the ad-interim order of this Court dated 12^th October, 2011 was continued until the Notice of Motion was heard. That application has also been dismissed. The plaintiff's contention that it was continued, the Appeal Court order having been set aside notwithstanding, has been dismissed. It is, therefore, not possible to continue the ad-interim order. Consequently it is not possible to call upon the defendants to continue to deposit each month and it follows as a matter of corollary, therefore, that the amount deposited must be allowed to be withdrawn as per the Judge's Order which was the seminal application upon which this contention has been raised.

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In view thereof the Judge's Order is signed.

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Upon the application of the plaintiff the Prothonotary and Senior Master of this Court is directed not to refund the amounts for two weeks.

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(ROSHAN DALVI, J.)

Bakulesh D. Sanghavi v. Hiralaxhmi D. Sanghavi and 3 Ors.

Case brief

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Bakulesh D. Sanghavi v. Hiralaxhmi D. Sanghavi and 3 Ors.

Case brief

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