1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3740 OF 2008 IN ARBITRATION PETITION NO.36 OF 2005 UNION OF INDIA & ANR. ..PETITIONER VS. M/s. GANDHI INDUSTRIAL CORPORATION ..RESPONDENTS Mr. Yogeshwar S. Bhate for the Petitioner. Ms. Armin Wandrewala alongwith Mr. Neerav Merchant i/b M/s.Thakordas & Madgavkar for Respondent CORAM: Smt. ROSHAN DALVI, J. DATED: 30 th March, 2009 P.C.: 1. This Application is taken out for re-depositing the amount withdrawn by the Respondent in this Petition by way of substitution u/s 144 of the CPC. Under a certain tender of the Petitioners the Respondent had to deposit certain amounts stated to be by way of Modvat credit with the Petitioner. Under the condition of the tender the Petitioners were to retain that amount. The parties referred their dispute 2 under the tender to Arbitration. The Arbitrator fixed certain liabilities of the Petitioners in an Award. The Petitioner challenged the Award. The Petitioner deposited 75% of the amount which was 75% of the modvat credit in this court. The Arbitration Petition came to be dismissed. An Appeal therefrom also came to be dismissed. An Appeal to the Supreme Court however, came to be allowed. The order of the Supreme Court has considered on merits how the order of the Division Bench, the Learned Single Judge as well as the Arbitrator cannot be sustained. The order of the Arbitrator with regard to the modvat credit was set aside. As also the views of the learned single Judge and Division Bench of this court. The Supreme Court has held that the Petitioner herein (the Appellant therein) were entitled to retain the amounts equivalent to the modvat credit as claimed by them. 2. The Petitioner has claimed the entire of the amount deposited. That was 75% of the modvat credit amount. 25% of that amount has been retained by the Petitioner.75% of the amount was deposited in the court. The Petitioner would be entitled to withdraw that amount from the court. 3. However, pending the order of the Supreme Court and after the order of the Learned Single Judge of this court the 3 Respondent was allowed to and has withdrawn that amount from this court. The amount which was deposited by the Petitioner upon challenge to the Award was invested. The amount of Rs.37,98,116 /- was deposited on 29.06.2005. After several applications by preceipe the amount of Rs.3990822 was ultimately withdrawn on 19.08.2006. Since the Petitioner is held entitled to ''retain the amount equivalent to the modvat credit'', by the final judgment, the Petitioner must be given back that amount which has been withdrawn by the Respondent so that the Petitioner retained that amount as allowed and as they are held entitled to 4. The Petitioner has therefore taken out this Notice of Motion for directions against the Respondent to redeposit the amount so withdrawn representing the 75% of the modvat credit with the Prothonotary & Senior Master of this court and for them to withdraw that amount so deposited. In view of the final order of the Supreme court such directions shall have to be passed and carried out. The Respondent's Advocate states that another Arbitration Petition has been filed by the Respondent in this court challenging the said Award. It has been dismissed. Appeal against that dismissal order has been admitted as the order of the learned Single Judge of this court is stated to require consideration. The Appeal is listed on the board of the Division Bench of this 4 court. She contends that the Petitioner cannot be allowed to obtain the said amount pending that appeal and that the Notice of Motion be stayed until that appeal is heard. Hence the Respondent claims that the amount representing the modvat credit which has been allowed by the Supreme Court to be retained by the Petitioner should not be so allowed to be retained as the claim of the Respondent is far larger and the amount of the modvat credit can be adjusted when the Respondent's appeal is heard. The amount which the Respondent may or may not be allowed under its Petition would have to be dealt with separately in that Petition and the Appeal therefrom. The retention of the modvat credit already allowed by the Supreme court has to be allowed separately. 5. The Respondent also contends that the Petitioner knew that the amount was ordered to be withdrawn, the Respondent had applied for its withdrawal with notice to the Petitioner and that the Respondent had in fact withdrawn that amount. That fact was not brought to the notice of the Supreme Court and hence that order of refund should not be passed. 6. The Supreme Court has held on merits that the Petitioner would be entitled to the entire of the modvat credit. The 5 ancillary and consequent directions may not have been passed by the Supreme court. Those follow as matter of course from the order of the Supreme Court. Precisely because those directions have not been passed by the Supreme Court, this Notice of Motion is required to be taken out. No order can be passed by this court which would go against the order of the Supreme Court which entitled the Petitioner to receive the entire amount of the Modvat credit. The Respondent cannot be allowed to delay the payment to be made on the ground of its separate challenge to the Award, which has been considered separately in this Petition. 7. Notice of Motion made absolute in terms of prayer (a). Respondent shall redeposit Rs.39,90,822/- withdrawn by the Respondent on 19.08.2006 with the Prothonotary & Senior Master within 4 weeks from today. The Petitioner shall be allowed to withdraw the amount, if deposited. 8. If the amount is not redeposited as directed within 4 weeks from today, the Petitioner shall be entitled to take out proceedings as per law to recover that amount. (Smt. Roshan Dalvi, J)