Partly allowed

The State of Maharashtra Thr the Collector Osmanabad and Ors. v. M/S Jaykumar Fulchand Ajmera Thr Its Partner Rajkumar Jaykumar Ajmera

Bombay HC19 Aug 2023CA/11413/2022

Case brief

AI extract

What is this about?

The High Court allowed a civil application by consent to stay the execution of a decree pending appeal. The Writ Petition was partly allowed, granting partial permission to the decree holder to withdraw Rs. 40 lacs via affidavit-undertaking and Rs. 35 lacs via bank guarantee.

What did the court decide?

Stay on execution granted by consent; Writ Petition partly allowed granting leave to withdraw Rs. 40 lacs by affidavit and Rs. 35 lacs by bank guarantee pending appeal.

The State of Maharashtra Thr the Collector… — Civil Procedure and Limitation | Bombay HC (2023)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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COMMERCIAL APPEAL NO.3 OF 2021

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WITH

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CIVIL APPLICATION NO.11413 OF 2022 IN COMAP/3/2021

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THE STATE OF MAHARASHTRA AND OTHERS

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VERSUS M/S JAYKUMAR FULCHAND AJMERA

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WITH

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WRIT PETITION NO.7425 OF 2022

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M/s JAYKUMAR FULCHAND AJMERA

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VERSUS

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THE STATE OF MAHARASHTRA AND OTHERS

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AGP for the Appellants in Appeal and for the Respondents in WP : Shri S.G. Karlekar

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Advocate for the Respondent in Appeal and for the Petitioner in WP : Shri G.K. Naik Thigle

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CORAM : RAVINDRA V. GHUGE & Y. G. KHOBRAGADE, JJ.

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DATE :- 19^th August, 2023

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Per Court :-

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(a) Civil Application No.11413/2022:-

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The State of Maharashtra has preferred this Civil

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Application and has put forth prayer clause B as under:-

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"B) Pending hearing and final disposal of Commercial Appeal No.03/2021 the effect, implementation and execution of judgment and

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decree dated 27.02.2020 in Commercial Suit No.1/2017 passed by the Commercial Court, District Judge-2, Osmanabad may kindly be stayed."

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We have considered the strenuous submissions of the learned AGP on behalf of the Applicant/original Appellant and the learned Advocate for the Decree Holder, who has relied upon the extensive affidavit in reply filed on 16.08.2022.

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After the hearing was concluded, the learned Advocate for the Decree Holder submits, on instructions from the representative of the Decree Holder present in the Court, that as the State has deposited more than 50% of the decreetal amount in the backdrop of the order dated 21.08.2021 passed in Civil Application No.2159/2021 and the order dated 22.10.2021 passed in Commercial Appeal No.3/2021, the Civil Application may be granted in terms of the prayer clause B.

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In view of the above, this Civil Application is allowed in terms of prayer clause B, by consent.

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(b) Writ Petition No.7425/2022:-

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This petition has been clubbed with Commercial

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Appeal No.3/2021 vide the order passed by the Administrative

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Judge of this Court on 22.09.2022.

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By this petition, the Decree Holder seeks to challenge the order passed by the learned District Judge-3, Osmanabad, below Exhibit-18 in Special Darkhast No.223/2020, by which, the Executing Court has declined the permission to the Decree Holder to withdraw the amount of Rs.2,27,82,616/deposited by the State vide the Demand Draft dated 06.05.2022.

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Today, we have passed the order in Civil Application No.11413/2022, by consent, by which the interim stay granted by this Court vide the order dated 21.08.2021, has been restored.

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The learned Advocate for the Decree Holder submits, on instructions from the representative of the Decree Holder present in the Court, that if this Court is inclined to allow the Decree Holder to withdraw some portion of the amount, the bank guarantee as well as an affidavit-undertaking for such amount would be tendered by the Petitioner/ Decree Holder.

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After hearing the parties, we expressed a view that we are inclined to allow the Decree Holder to withdraw the amount of Rs.75 lacs pending the hearing in the Commercial Appeal.

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The learned Advocate for the Decree Holder submits

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that instead of giving a bank guarantee for the entire amount, the Decree Holder may execute a bank guarantee for an amount of Rs.35 lacs and an affidavit-undertaking for an amount of Rs.40 lacs.

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The learned AGP has vehemently opposed the withdrawal of any amount by the Decree Holder.

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We find that the Decree Holder has succeeded to the extent of Rs.1,19,21,744/-. The Commercial Court has granted 12% interest on the said amount, which, prima facie, appears to

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be exorbitant. Nevertheless, the State has deposited Rs.2,27,82,616/- before the Executing Court.

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By this Writ Petition, the Petitioner/ Decree Holder seeks to challenge the order of the Executing Court refusing leave to withdraw the amount. If the Petitioner succeeds in the Writ Petition, we can mould the reliefs suitably.

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In view of the above, this Writ Petition is partly allowed and the impugned order dated 22.06.2022 is modified as under:-

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(a) In view of the statement of the Petitioner/ Decree Holder, we grant leave to withdraw Rs.40 lacs from the

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Executing Court by tendering an affidavit-undertaking, copy of which will also be placed on record in Commercial Appeal No.3/2021 pending in this Court, stating therein that if the Petitioner/ Decree Holder ultimately is held to have been paid excess amounts or has withdrawn excess amounts, such excess amounts shall be redeposited in this Court within six weeks from the date of the decision in the Commercial Appeal, failing which, the said amounts would be recovered from the outstanding bills of the Petitioner in other contracts/projects, if pending with the State Government.

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(b) The Petitioner would withdraw an amount of Rs.35 lacs by executing a bank guarantee, which would last until the decision in the Commercial Appeal before us and shall not be released until specific orders from this Court.

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Since the record and proceeding has been received,

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list this appeal for final hearing on 27.09.2023.

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kps (Y. G. KHOBRAGADE, J.) (RAVINDRA V. GHUGE, J. )

The State of Maharashtra Thr the Collector Osmanabad and Ors. v. M/S Jaykumar Fulchand Ajmera Thr Its Partner Rajkumar Jaykumar Ajmera

Case brief

What is this about?

What did the court decide?

The State of Maharashtra Thr the Collector Osmanabad and Ors. v. M/S Jaykumar Fulchand Ajmera Thr Its Partner Rajkumar Jaykumar Ajmera

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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