Madhya Pradesh High Court
Madhya Pradesh Road Development ... vs Jmc Projects (India) Limited on 23 June, 2022
Author: Sujoy Paul
Bench: Sujoy Paul
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
AA No. 15 of 2022
(MADHYA PRADESH ROAD DEVELOPMENT CORPORATION Vs JMC PROJECTS (INDIA) LIMITED)
Dated : 23-06-2022
Shri Kushagra Singh, learned counsel for the appellant.
Shri Akshay Sapre, learned counsel for the respondent.
Learned counsel for the appellant has filed IA No.4176 of 22 seeking modification of the order dated 30.3.2022 passed in this matter with the prayer for incorporating a condition of submission of solvent security and undertaking by the respondent for withdrawal of the deposited amount.
IA No. 4385 of 22 is filed by the respondent for modification of the aforesaid order with the prayer that the amount of 50% directed to be deposited be enhanced to 100%.
Shri Akshay Sapre, learned counsel for the respondent at the outset submits that he has no objection if the amount directed to be deposited can be permitted to be withdrawn on furnishing the adequate solvent security. He by placing reliance on the order of Supreme Court in Civil Appeal Nos. 4549- 4550 of 2021, (Toyo Engineering Corporation and another Vs. Indian Oil Corporation Limited) dated August 02, 2021 submits that merely because the appellant is a Public Sector Unit/ Government Corporation, it can not get any relaxation in the matter of depositing the amount as per principles flowing from Order XLI, Rule 5 of CPC. In view of order of Supreme Court in Toyo Engineering Corporation and another Vs. Indian Oil Corporation Limited, (supra), the order may be modified by directing the appellant to deposit 100% amount and said amount may be permitted to be withdrawn on furnishing adequate solvent security to the satisfaction of the executing court.
2Shri Kushagra Singh, learned counsel for the appellant also relied on the another order of Supreme Court filed with the IA (Special Leave to Appeal (C) No.(s) 5383/2022, (Madhya Pradesh Road Development Corporation Vs. M/s. Ketan Construction Ltd.), dated 04.04.2022.
Learned counsel for the appellant submits that the amount directed to be deposited can be withdrawn by the respondent only on furnishing solvent security.
As noticed above, the parties are not on logger heads on the question of depositing the adequate solvent security.
As noticed, Shri Sapre agreed that the amount directed to be deposited can be withdrawn only on furnishing solvent security to the satisfaction of the court below.
The parties are at logger heads on the amount which should be directed to be deposited and whether the 50% amount directed to be deposited by this court on 30th March 2022 may be enhanced to 100% or not.
Shri Sapre further argued that 50% amount was directed to be deposited within 15 days by order dated 30.3.2022. The said amount has not been deposited till date.
The Apex Court in Toyo Engineering Corporation and another Vs. Indian Oil Corporation Limited, (supra) has recorded as under:-
"This Court repeatedly having held that Order XLI Rule 5 principles are to be followed in these cases, we find that largely because public corporations are involved, discretion continues to be exercised not on principles under Order XLI Rule 5 but only because large amounts exist and that Government Corporations have to pay these amounts under Arbitral Awards. Both these considerations are irrelevant, as has been pointed out by us earlier. As a matter of fact, the very matter referred to in the order dated 09.08.2019 and 06.03.2020, namely, O.M.P. (COMM) No. 366/2017 has resulted in a dismissal of a Section 3 34 petition in an award that was granted out of one of 17 other contracts arising out of the same general transaction. Mr. Sharma was at pains to point out that the Section 34 petition was dismissed in that matter on completely different grounds. Be that as it may, O.M.P. (COMM) No. 366/2017 at the highest, therefore, would be irrelevant. This O.M.P. (COMM) No. 366/2017 appears to be the main plank on which an amount of Rs. 125 Crores alone was ordered to be deposited out of an awarded amount of Rs. 662 Crores. Resultantly, we set aside both the orders and require a 100% deposit of the awarded amount to be made within a period of six weeks from today.
The appellants may apply to the High Court to withdraw this amount on security.
The appeals are disposed of.
(Emphasis Supplied) In view of the principles laid down in Toyo Engineering Corporation, (supra), we find substance in the argument of Shri Sapre that the appellant- Corporation can not get any relaxation/concession in the matter of depositing the entire amount as per the principles founded upon Order XLI, Rule 5 of CPC. So far order of Apex Court relied upon by learned counsel for the appellant is concerned, suffice it to say that in the order of Madhya Pradesh Road Development Corporation Vs. M/s. Ketan Construction Ltd., (supra), the question of depositing 50% or 100% amount was not the subject matter. If the order of Supreme Court in Madhya Pradesh Road Development Corporation Vs. M/s. Ketan Construction Ltd., (supra) is r/w the order of High Court, which was subject matter of challenge before the Supreme Court, (i.e. in AA No.98/21, dated 2.3.2022), it will be clear like noon day that the only contention of the Corporation was that the amount directed to be deposited can be withdrawn subject to furnishing security. To this extent, the Apex Court modified the order of High Court. Thus, the order in Madhya Pradesh Road Development Corporation Vs. M/s. Ketan Construction 4 Ltd., (supra) does not help the appellant for the purpose of deciding the amount to be deposited by the appellant in the teeth of Order XLI, Rule 5 of CPC.
Consistent with the order passed by the Supreme Court in Toyo Engineering Corporation and another, (supra), we deem it proper to modify the order of this court dated 30.3.2022 and direct the appellant - Corporation to deposit 100% amount before the court below.
At this stage, learned counsel for the appellant fairly submits that the said amount shall be deposited within seven working days from day.
In view of stand of Shri Sapre, needless to mention that the said deposited amount can be withdrawn by the respondent only subject to furnishing adequate solvent security to the satisfaction of court below. If the appellant succeeds, said amount will be recoverable with interest.
Both the interlocutory applications are disposed of. Subject to depositing the amount as above, the interim order shall remain in operation.
(SUJOY PAUL) (PRAKASH CHANDRA GUPTA)
JUDGE JUDGE
bks
Signature Not Verified
SAN
Digitally signed by BASANT KUMAR
SHRIVAS
Date: 2022.06.24 10:04:53 IST