Madhya Pradesh High Court
Gauri Agrotech Products Pvt. Ltd. vs Sanjay Modi on 17 June, 2019
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HIGH COURT OF MADHYA PRADESH
FA No. 1042/19
Indore, Dated: 17/6/2019
Shri Rameshwar Totala with Shri Yogesh Hemnani learned
counsel for appellant.
Shri Vinay Saraf learned senior counsel with Shri Rijwan Khan
learned counsel for respondent.
Appeal is admitted for hearing.
Let the record be requisitioned.
Heard on IA No. 3932/19 which is an application under Order 41 Rule 5 of CPC for stay.
Learned counsel for appellant submits that though issues no. 1 & 2 have been answered against respondent and reasonings have been given in favour of appellant yet the suit has been decreed. He further submits that broker Rassex Traders was not impleaded though transaction was said to have been done through it and the application for impleadment filed by appellant was also rejected. He further submits that it has not been proved that respondent is the proprietor of Jayant Enterprises. He also submits that though there is an allegation of non supply of material yet the amount was paid between the period 14/11/2013 to 24/1/2014 which is highly improbable and burden of proving the account adjustment has wrongly been placed upon the appellant. He further submits that the garnishee order passed by the executing court is an ex parte order and subsequently the executing court has issued communication to HDFC Bank Jalan and Indore to clarify if the amount was belonging to appellant as the said amount was relating to cash credit limit.
Opposing the prayer learned counsel for respondent has submitted that it is a money decree and the amount is required to be secured and in this regard he has placed reliance upon judgments of the Supreme court in the matter of Kayamuddin Shamsuddin -2- Khan Vs. State Bank of India reported in (1998) 8 SCC 676 and M/s Malwa Strips Pvt. Ltd. Vs. M/s Jyoti Ltd reported in AIR 2009 SC 1581. He has also referred to provision contained in Order 41 Rule 1 (3) and Order 41 Rule 5(5) of CPC. He has also submitted that garnishee order has been passed by the executing court on 23/5/2019 directing the HDFC bank to hold the sum of Rs. 1,39,58,088/- in the account of appellant and the said amount has been withheld by the bank and the same should be allowed to be withdrawn by the respondent and in support of his submission he has placed reliance upon Division Bench order dated 21/4/16 of this court passed in FA No. 477/16 in the case of Manikya Agrotech Pvt. Ltd. & another Vs. M/s Ramkrishna Solvex Pvt. Ltd. & others.
Having heard the learned counsel for the parties and on perusal of the record it is noticed that the suit for recovery filed by respondent (plaintiff) has been decreed by the trial court by directing the appellant to pay a sum of Rs. 96,00,619/- alongwith the interest @ 9%. The decree under challenge is in the nature of money decree.
Order 41 Rule 1(3) of CPC requires the appellant in an appeal against the money decree to deposit the amount disputed in appeal or furnish such security in respect thereof as the court may think fit within the time granted by the appellate court. Order 41 Rule 5 (5) CPC provides for compliance of the condition prescribed under Order 41 Rule 1(3) CPC for grant of stay of execution of the decree. In terms of the judgment of Supreme court in case of M/s Malwa Strips Pvt. Ltd.(supra) also unless an exceptional case is made out the money decree is not to be stayed unless the decreetal amount is deposited or security is given. Division Bench of this court also in the matter of Manikya Agrotech Pvt. Ltd. (supra) has taken the same view. In the matter of Kayamuddin (supra) it has been held that non -3- compliance with the direction given regarding deposit under Rule 1(3) results in rejecting the prayer for stay.
The trial court has found that respondent had paid sum of Rs. 96,00,619/- to appellant and therefore, the said amount was required to be refunded. Accordingly the money decree to that effect has been passed.
Having regard to the circumstances of the case and considering the material on record and nature of judgment and decree under challenge as also the ground raised before this court, I am of the opinion that interest of justice will be served in staying the decree under challenge, subject to deposit of partial amount and also furnishing security for remaining amount.
Therefore, IA No. 3932/2019 is disposed off by directing that judgment and decree under challenge shall remain stayed subject to deposit of 50% of the decreetal amount by appellant and furnishing security for the balance amount before the executing court to the satisfaction of the executing court within a period of 8 weeks from today. The respondent would be entitled to withdraw the amount so deposited by appellant subject to furnishing the security to the satisfaction of the executing court and on failure to do so by the respondent, executing court will invest the said amount in the interest bearing fix deposit in a Nationalized Bank. The above deposit and withdrawal will be subject to the final outcome of this appeal.
C.C. as per rules.
(PRAKASH SHRIVASTAVA) Judge BDJ Digitally signed by Bhuneshwar Datt Date: 2019.06.18 15:42:16 -07'00'