Punjab-Haryana High Court
M/S Ajanta Soya Limited And Anr vs T.R. Mishra And Anr on 25 April, 2016
202 CM-13337-C-2015 IN
RSA No.1834 of 2013
M/S AJANTA SOYA LIMITED AND ANR VS T.R. MISHRA AND
ANR
Present: Mr. P.C. Goyal, Advocate
for the applicant-appellants.
Mr. Sunil Chadha, Sr. Advocate with
Ms. Pallavi Singh, Advocate
for the non-applicant-respondents.
***
[1]. This appeal was dismissed by this Court on 04.09.2015. Appeal was filed by defendant-appellants against the judgment and decree dated 14.08.2012 passed by Additional District Judge, Ludhiana, vide which judgment and decree of the trial Court was upheld.
[2]. In a suit for recovery, trial Court decreed the claim of the plaintiff which was affirmed by the Lower Appellate Court. At the time of issuance of notice of motion on 25.04.2013, this Court issued notice regarding stay and also summoned the record of the Courts below. On 14.08.2013, learned counsel for the appellants sought time with regard to compliance of provisions of Order 41 Rule 1(3) CPC. Ultimately, learned counsel for the appellants stated before the Court that a bank guarantee amounting to Rs.7,00,000/- shall be submitted before the next date of hearing in terms of Order 41 Rule 1(3) CPC. Pursuant to aforesaid order, a bank guarantee was submitted which is still valid upto 05.03.2017. Bank guarantee was taken on record.
[3]. Now the application has been moved by the respondents, seeking refund of the bank guarantee after 1 of 3 ::: Downloaded on - 30-04-2016 00:05:22 ::: CM-13337-C-2015 IN -2- RSA No.1834 of 2013 dismissal of the appeal. Notice of this application was issued to the non-applicant-respondents. Order 41 Rule 3 CPC mandates that where the appeal is filed against the money decree, then the appellant shall within such time as may be allowed by the Appellate Court deposit the amount disputed in the appeal or furnish such security in respect thereof as may be directed by the Court.
[4]. Further in terms of Order 41 Rule 5 CPC, it is mandatory that in case appellant fails to make the deposit or furnish the security specified in sub-Rule (3) of Rule 1, the Court shall not make an order staying the execution of the decree.
[5]. In the present case, bank guarantee was submitted and stay of execution of impugned decree was passed. Since the bank guarantee was submitted in lieu of deposit of the disputed amount for entertaining the appeal, the same cannot be refunded on dismissal of the appeal. It has been brought to the notice of the Court that the decree holder has already resorted to the execution and no stay has been produced by the appellants from the Hon'ble Supreme Court, therefore, this amount can be dispatched to the Executing Court for utilization thereof in the execution.
[6]. In terms of Order 41 Rule 3 CPC, the bank guarantee was deposited in lieu of the disputed amount in appeal for the purpose of seeking stay of execution of a money decree. This amount cannot be refunded, because in the event of failure on 2 of 3 ::: Downloaded on - 30-04-2016 00:05:23 ::: CM-13337-C-2015 IN -3- RSA No.1834 of 2013 the part of the appellant to deposit such amount, this Court was not obligated to stay the execution of the decree. Rather, the provision in terms of Order 41 Rule 5 CPC is mandatory to the extent that in the event of non-furnishing of security specified in sub-Rule (3) of Rule 1 of Order 41, the Court shall not make an order staying the execution of the decree. [7]. In view of aforesaid, I am not in agreement with the submissions made by learned counsel for the appellants. Now the bank guarantee lying with the High Court be dispatched to the Executing Court for satisfaction of the decree in question. [8]. With these observations, the application stands dismissed, being bereft of merit.
April 25, 2016 (RAJ MOHAN SINGH)
prince JUDGE
3 of 3
::: Downloaded on - 30-04-2016 00:05:23 :::