1 Ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8307 OF 2009 Shri Badrinarayan Bansilal Somani. .. Petitioner Vs Shri Vinodkumar K. Shah. .. Respondent -- Shri Amol Gatne i/by Shri S.B. Deshmukh for the Petitioner. Shri A.M. Joshi for the Respondent. -- CORAM : A.S.OKA, J. DATE : 26TH APRIL, 2010 P.C. Notice for final disposal was issued on 12th November, 2009. Shri Patwardhan, Advocate, who had filed his Vakalatnama on behalf of the Respondent, seeks a discharge. He is discharged as Shri A.M. Joshi, Advocate has filed his Vakalatnama on behalf of the Respondent. 2. The order dated 12th November, 2009 passed by this Court reads thus:- 2 “1. The Trial Court passed the money decree in favour of the Respondent/Plaintiff and against the present Petitioner/Defendant. Against the said decree the First Appeal was filed by the Petitioner in the High Court. First Appeal came to be decided on 09th September, 2008. The Trial Court had decreed the money claim and awarded interest at the rate of 15% per annum. In First Appeal, this Court modified the decree and instead of granting interest at the rate of 15% per annum, granted interest at the rate of 9% per annum from the date of filing of the suit till the date of decree and from the date of decree till realization, interest at the rate of 6% per annum has also been granted. The modification of the decree warranted adjustment of the amount already deposited in satisfaction of the decree. Hence, having regard to the modified decree, the Petitioner moved an application for withdrawing certain amount which according to him was deposited in excess of the decree. The said application was opposed by the learned counsel for the Respondent by contending that the review application has been filed in First Appeal in this High Court and till the review application is decided by an interim order the amount lying in the Court be deposited in the Bank. The Respondent did also move an application seeking deposit of the amount in the Bank. The said prayer has been accepted by the Trial Court and the amount has been directed to be deposited in the State Bank of India for a period of one year, by the order dated 23rd January, 2009. 2. The learned counsel for the Petitioner has submitted that as a matter of fact no review application has been filed in the First Appeal and the Respondent did not give the review application number and other details to ascertain the correctness of the said statement. 3. Relying on the submissions made by the learned counsel for the Petitioner that no review application is filed, I direct the notice to be issued to the Respondent returnable in three weeks. Humdast allowed. The 3 Respondent be put on notice that the Writ Petition shall be heard and finally disposed of at the stage of admission.” 3. On 9th march, 2010 when this Writ Petition came up before this Court, a direction was issued to the Respondent to file a reply setting out details of the review application such as the date of filing and number thereof. By the order dated 8th April, 2010, a report of the Registry was called. The Report of the Registrar records that a review application along with the application for condonation of delay has been filed by the Respondent on 13th April, 2010. 4. On the basis of an order passed by this Court in the First Appeal, the Petitioner, who is the judgment debtor, made an application for withdrawal of a sum of Rs.6,73,721.20 out of the decretal amount earlier deposited by the Petitioner. In the said application, a prayer was made that in terms of the decree modified in the First Appeal, the Respondent- the decree holder be permitted to withdraw only a sum of Rs.9,33,634.70. On 20th June, 2009, an application was made by the Respondent in which a specific statement was made that a review petition has been filed by the Respondent in this Court. It was contended that in view of filing of the review petition, instead of permitting the Petitioner to withdraw the amount, the same be invested in a bank. An order was passed on 23rd July, 2009 by the Trial Court directing investment of the said amount in a co- operative bank. The said order was passed on the basis of the statement made by 4 the Respondent that the review petition has been filed by him. The said order was modified on 27th July, 2009 by which the investment was ordered to be made in a nationalized bank. The challenge in this Writ Petition is to the said two orders. 5. The factual aspects which are narrated above clearly show that when the application dated 20th June, 2009 was filed by the Respondent before the Trial Court, the review Petition was not at all filed. By an order dated 9th March, 2010, an opportunity was granted to the Respondent to file a reply stating particulars of the review application. Even as of that date, the review petition was not filed and now it transpires that the same has been filed on 13th April, 2010. Thus, the application dated 20th June, 2009 made by the Respondent before the Trial Court contains a false statement. The learned counsel appearing for the Respondent invited an attention of the Court to a letter written by an Advocate practicing in this Court to the Respondent on 5th January, 2009 which indicates that the review application was filed in this Court. The learned counsel stated that the Respondent was under a bonafide impression that the review application has been filed as per his instructions. He, therefore, submitted that the statement made in the application filed in the Trial Court was not intentional. 6 It must be noted here that the order dated 12th November, 2009 was passed by this Court recording a categorical statement of the Petitioner that the 5 Respondent has not filed a review petition. It appears that the Court notice of this Writ Petition was served to the Respondent on 2nd February, 2010. Vakalatnama of an Advocate was filed in this Court by the Respondent on 9th February, 2010. On 9th March, 2010, this Court issued a specific direction to the Respondent to file an affidavit setting out details of the review application. There was a typographical error in the said order in as much as the year of Writ Petition was incorrectly mentioned in the order. On 8th April, 2010 when the Petition was placed on board, the said error was corrected. On that day this Court noted that the Respondent had not complied with the order dated 9th March, 2010. A report of the Registry was called for to ascertain whether any review application filed by the Respondent was pending in this Court. In the light of the order dated 12th November, 2009 passed by this Court, the Respondent was put to notice that according to the case of the Petitioner, in fact, the review petition had not been filed. As stated earlier, the service of notice was effected on 2nd February, 2010. Thereafter, the Petition was placed on board on 9th March, 2010 and 8th April, 2010. On both the occasions, the Respondent’s Advocate was present. The Respondent has chosen not to disclose the fact that till 8th April, 2010, a review petition was not filed. In fact, there is a non-compliance of the order dated 9th March, 2010 by the Respondent. An affidavit in terms of the said order is not filed even till today. In view of the subsequent conduct of the Respondent, it is not possible to accept that the statement made by the Respondent in the application dated 20th June, 2009 was unintentional. 6 7. The impugned order has been passed on the basis of a statement of the Respondent that the review petition has been filed in this Court. Though opportunities were available to the Respondent to come before this Court and make a correct factual statement, the Respondent has failed to avail of the opportunities. There is no explanation as to why the order of this Court was not complied with by the Respondent. It follows that the impugned order will have to be set aside. However, the conduct of the Respondent will have to be viewed seriously. An application for withdrawal of the amount was made by the Respondent on 2nd December, 2008. The said application remained pending till today only on the basis of the aforesaid false representation made by the Respondent. Not only that the application remained pending for a long time, the Petitioner was forced to approach this Court. Therefore, this is a case where the Respondent will have to pay compensatory costs. The learned counsel appearing for the Petitioner submitted that this is a case where action should be initiated under the Contempt of Courts Act, 1971 against the Respondent. Considering the peculiar facts of the case, no case is made out to initiate such action. Considering the conduct of the Respondent, the amount of costs is quantified at Rs.25,000/-. 8. Hence, the Petition is disposed of by passing the following order. 7 (a) The impugned orders are quashed and set aside. The application dated 20th June, 2009 filed by the Respondent stands dismissed. (b) The application dated 2nd December, 2008 filed by the Respondent is restored to file of the Executing Court. The Executing Court will proceed with the said application afresh in accordance with law. ( c) It is made clear that this order will not come in the way of the Respondent in prosecuting the review petition. (d) The Respondent shall pay costs of Rs.25,000/- to the Petitioner. The amount shall be paid or shall be deposited in this Court on or before 9th June, 2010. If compliance is not made by depositing the amount, the Petition shall be placed for directions before the appropriate Court. JUDGE