Gujarat High Court
New vs Ahmedabad on 18 July, 2011
Author: Jayant Patel
Bench: Jayant Patel
Gujarat High Court Case Information System
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FA/795/2011 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 795 of 2011
With
CIVIL
APPLICATION No. 3296 of 2011
In
FIRST APPEAL No. 795 of 2011
=========================================================
NEW
INDIA ASSURANCE COMPANY LIMITED, REGIONAL OFFICE AND - Appellant(s)
Versus
AHMEDABAD
AVIATION & AERONAUTICS LIMITED - Defendant(s)
=========================================================
Appearance :
MR
SN SHELAT, SENIOR ADVOCATE WITH MR VIBHUTI NANAVATI
for Appellant(s) : 1,
RULE
SERVED for Defendant(s) : 1,
MR DHARMESH V SHAH for Defendant(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE R.M.CHHAYA
Date
: 18/07/2011
ORAL
ORDER
(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) FIRST APPEAL No. 795 of 2011 Admit.
CIVIL APPLICATION No. 3296 of 2011
1. The present application is for interim injunction pending First Appeal against the execution and implementation of the judgment and decree passed by the trial Court which is under challenge in the First Appeal.
2. We have heard Mr. Shelat, learned Senior Advocate with Mr. Nanavati for the applicant and Mr. D.V. Shah for the respondent.
3. Considering the facts and circumstances, this Court on 8.4.2011 had passed the following order :
"Notice returnable on 09.05.2011. By ad interim order, there shall be stay against execution and implementation of the judgement and decree passed by the Civil Court on the condition that the applicant deposits the entire decreetal amount together with the cost and interest before the returnable date".
4. Mr. Shelat, learned Counsel states that the amount has been deposited. Under the circumstances, ad-interim relief granted earlier is confirmed.
5. We have heard learned Counsel appearing on behalf of both the sides on the aspect of withdrawal. Considering the facts and circumstances, the amount can be permitted to be withdrawn on furnishing bank guarantee or solvent security to the satisfaction of the trial Court. Mr. Shah, learned Counsel appearing for the respondent further submitted that the respondent Company is not in a position to furnish any bank guarantee or solvent security and he further submitted that unconditionally 30% of the amount may be permitted to be withdrawn and also the interest as may accrue in the event this Court is inclined to order for investment.
6. It appears that when the First Appeal is pending, the withdrawal may not be granted unconditionally. If the respondent is desirous to withdraw the amount, there should be some material available so as to ensure that the amount can be recovered back if Appeal is allowed.
7. Hence, it is observed that the amount deposited by the appellant shall be permitted to be withdrawn if the respondent furnishes the bank guarantee or solvent security of the equivalent amount to the satisfaction of the trial Court. It is also observed that in the event the condition is not complied with and, the amount is not withdrawn by the respondent, the trial Court in absence of any motion within a period of three months shall invest the amount in the Fixed Deposit Receipt with the Nationalized Bank initially for a period of three years and such investment is renewed from time to time until the Appeal is disposed of.
8. The application is disposed of accordingly.
Sd/-
(Jayant Patel, J.) Sd/-
(R.M. Chhaya, J.) M.M.BHATT Top