Bombay High Court
Hsbc Pi Holdings Mauritius Limited vs Avitel Post Studioz Limited on 27 February, 2024
Author: Abhay Ahuja
Bench: Abhay Ahuja
49. IA 3563-23 in COMEXL 15723-23.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
INTERIM APPLICATION NO. 3563 OF 2023
IN
COMMERCIAL SUMMERY SUIT NO. 15723 OF 20232
HSBC Pl Holdings (Mauritius) Limited ...Applicant
V/s.
Avitel Post Studioz Ltd and Ors. ...Respondents
Mr. Rohan Rajadhyaksha with Mr. S. Doongarji, Mr. Ayush Chaddha,
Mr. Dhaval Vora and Mr. Shanay Shroff i/b AZB Partners for Applicant.
Mr. Gaurang Mehta with Mr. Prashant Mishra, Ms. Vidhi Dharia and Ms.
Ankita Parab i/b Ms. Priyanka Lokhande for Respondents No. 1 to 4.
CORAM : ABHAY AHUJA, J.
DATE : 27th FEBRUARY, 2024 P.C. :
1. This interim application has been filed in commercial execution application for execution of Foreign Award dated 27 th September, 2014 in excess of USD 60 million.
2. Mr. Rajadhyaksha, learned Counsel appears for the Applicant- Award Creditor/Decree Holder and submits that the Hon'ble Supreme Court has upheld the order under Section 9 of the Arbitration and Conciliation Act, 1996 and in order dated 9 th September, 2022 in Contempt Petition (C) No. 624 of 2020 in Civil Appeal No. 5158 of Nikita Gadgil 1/4 ::: Uploaded on - 28/02/2024 ::: Downloaded on - 28/02/2024 13:41:27 :::
49. IA 3563-23 in COMEXL 15723-23.doc 2016 has clarified that the order of attachment already passed earlier vide order dated 2nd September, 2022 is directed to be continued till the disposal of the execution proceedings and it is also directed that the execution proceedings be disposed of at the earliest and preferably within a period of three months from the date of the said order.
3. Mr. Rajadhyaksha, would submit that although the proceedings arising out of Section 48 of the Arbitration and Conciliation Act, 1996 are pending in the Hon'ble Supreme Court and listed on 4 th March, 2024, however, since there is no stay to the said proceedings, this Court may in view of the directions of the Hon'ble Supreme Court, proceed to hear all the interim applications and pass orders as prayed for.
4. Mr. Mehta, learned Counsel who appears for the Award Debtor, Respondent, would submit that earlier this Court has adjourned the matter in view of the pendency of the Section 48 proceedings in the Hon'ble Supreme Court and this Court may adjourn this matter for some time until after hearing before the Hon'ble Supreme Court. Mr. Mehta, also draws the attention of this Court to the Order 21 Rule 17 of the Code of Civil Procedure, 1908 (the "CPC") and submits that the execution application as well as interim application is on lodging Nikita Gadgil 2/4 ::: Uploaded on - 28/02/2024 ::: Downloaded on - 28/02/2024 13:41:27 :::
49. IA 3563-23 in COMEXL 15723-23.doc number and not yet registered and therefore, neither the execution application nor the interim application in the said execution application can be heard. Mr. Mehta, draws the attention of this Court to the sub- rule 1-A of the Rule 17 of Order 21 of the CPC and submits that if the defect is not remedied, it is mandatory upon the Court to reject the application.
5. Mr. Rajadhyaksha, would point out that no defects have been raised and therefore, there is no question of removing any defects and the question of rejecting application would not arise but in any event his Attorneys will follow up with the Registry and if there is any defect, the same would be removed by the next date.
6. Mr. Mehta, also submits that his client has not yet received copy of the execution application, which has been referred to and relied upon in the interim application. Mr. Rajadhyaksha, submits that in law, the Execution Applicant is not bound to furnish a copy of the execution application and if the Applicant relies upon it, he would furnish a copy of the same to the Respondent.
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49. IA 3563-23 in COMEXL 15723-23.doc
7. Be that as it may, at the joint request of the learned Counsel for the parties, list on 13th March, 2024. Let the copy of the execution application be furnished to the Counsel for the Respondents by the next date.
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