Bombay High Court
State Bank Of India vs The Custodian on 15 February, 2019
Author: A.K. Menon
Bench: A.K. Menon
ma-56-2018
rrpillai IN THE SPECIAL COURT (TRIAL OF OFFENCES RELATING TO
TRANSACTIONS IN SECURITIES) ACT, 1992
MISCELLANEOUS APPLICATION NO. 56 OF 2018
IN
CUSTODIAN REPORT NO. 20 OF 2018
State Bank of India ... Petitioner
vs.
The Custodian ... Respondent
Mr. Homaz Daruwalla a/w. Ms. Shilpa Bhate i/b. Leena Adhvaryu &
Associates for the Custodian.
Mr. Dwarkadas , Senior Advocate a/w. Mr. T. Cooper a/w. Mr.Aditya Singh i/b.
Little & Co. for Respondent - State Bank of India.
Mr. Aspi Chinoy, Senior Advocate a/w. Ms. Niyathi Kalra, Ms.Rujuta Patil, Ms.
S. Bhasi i/b. Negandhi Shah & Himayatullah for Respondent - NHB.
Mr. Ashwin Mehta a/w. Mr. Sanjay Naukudkar for Notified Party.
CORAM : A.K. MENON, J.
Judge, Special Court Date : 15 th FEBRUARY, 2019 P.C. :
1. By this Miscellaneous Application the State Bank of India prays the following :
(a) that the amount of Rs.2,95,71,35,747/- approximately be paid over to the State Bank of India directly by the Custodian being the amount of pro rata interest on the sum of Rs.3,37,25,77,242/- sought to be paid over to NHB by the 1/4 ::: Uploaded on - 15/02/2019 ::: Downloaded on - 16/02/2019 02:47:33 ::: ma-56-2018 Custodian, in Custodian's Report No. 20 of 2018.
(b) In the alternative to prayer (a), the Custodian Report no. 20 of 2018 be adjourned for hearing and be directed to be heard along with Misc. Application No. 69 of 2016.
2. The Applicant bank contends that it is entitled to restitution under Section 144 of the Civil Procedure Code, 1908 by virtue of an order dated 31st August, 2018 passed in Miscellaneous Application no. 62 of 2016 filed by respondent no. 2. The order dated 31 st August, 2018 allowed the Miscellaneous Application in terms of prayer (a) directing the Custodian to pay over to the respondent no. 2 a sum of Rs. 94,19,41,381/- along with interest actually earned thereon from the date of payment of the amount by respondent no. 2 to the Custodian and till the date of payment by the Custodian.
3. The case of the applicant is that it had filed Miscellaneous Application No. 69 of 2016 pursuant to judgment of the Supreme Court passed on 13 th July, 2013. In an appeal filed by the applicant against the original decree dated 24/25th February, 1999 passed by the Special Court in Suit No. 2 of 1995 thereby reversing the decree passed against it. The applicant bank therefore sought restitution in relation to the amounts said to have been paid by it to respondent no. 2. It is case of the applicant that since the Custodian has now been asked to pay over certain amounts to respondent no. 2, it 2/4 ::: Uploaded on - 15/02/2019 ::: Downloaded on - 16/02/2019 02:47:33 ::: ma-56-2018 would be appropriate that the amounts receivable by respondent no. 2 pursuant to the order dated 31st August, 2018 be paid over directly to the applicant bank by way of restitution.
4. Mr. Dwarkadas learned Senior Counsel appearing on behalf of the applicant-bank contended that the applicant bank was justified in claiming restitution by virtue of the meeting held under the Chairmanship of the Secretary, Department of Financial Services, Ministry of Finance on 6 th December, 2013 relating to implementation of the judgment of the Supreme Court dated 31st July, 2013 in Civil Appeal no. 3647 of 1999. At the meeting the Secretary opined that the respondent no. 2 - NHB would have to pay amount it had received from the applicant herein together with interest based on actual yield accrued. Mr. Dwarkadas contended that this Court had also alluded to the solution suggested by the Ministry as recorded in the minutes of the meeting referred above and that it would be appropriate that the amounts payable by the Custodian to respondent no. 2 be paid over directly to the applicant.
5. The application is opposed on behalf of the respondent no. 2 by Mr. Chinoy who relies upon the deposition of Mr. Kishor N. Kumbhare, the Deputy General Manager of NHB his affidavit in reply dated 25 th October, 2018.
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ma-56-2018
6. I have heard learned counsel for the parties and I am of the view that the application is an abuse of the process of the Court inasmuch as the applicant bank has already filed Miscellaneous Application no. 62 of 2016 which is pending in this Court. The claim of the applicant bank has been contested by the respondent no. 2 which inter alia has a counter claim of Rs. 353.78 crores against the applicant bank. The Counter Claim no. 1 of 2017 filed in Miscellaneous Application no. 69 of 2016 also awaits disposal. Moreover I find that the present applicant was the respondent no. 1 in Miscellaneous Application no. 62 of 2016 and represented by Advocates. None of the submissions made in this application were urged at the time of hearing Miscellaneous Application no. 62 of 2016.
7. In these circumstances I find there is absolutely no justification in filing the present application. In view of the above the application is liable to be rejected. I accordingly I pass the following order:
(i) MA/56/2016 is dismissed.
(ii) Applicant shall within two weeks from today pay costs quantified
at Rs.1,00,000/- payable to the Juvenile Justice Fund, Department of Women and Child Development, State of Maharashtra. The remittance shall be made to the "Maharashtra State Legal Services Authority" which shall pay over the amount to the said fund.
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