1 103 wp.5576.11 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION WRIT PETITION NO. 5576 OF 2011 Berger Paints India Limited. ... Petitioner Versus Steelcrete Private Limited. ... Respondent ----- Mr. Narendra Walawalkar, Senior Counsel, a/w Mr.Faisal Sayyed and Mr.Mayur Bhojwani i/b M/s. Manilal Kher Ambalal and Company for the Petitioner. Mr. Suraj Shah for the Respondent. ----- CORAM : A.S.OKA, J. DATE : 15 th November, 2011. P.C. 1 Heard the learned senior counsel appearing for the Petitioner and the learned counsel appearing for the Respondent. 2 Considering the narrow controversy involved, the petition is forthwith taken up for final hearing. 3 The Respondent – Plaintiff filed an application before the 2 103 wp.5576.11 Court of Small Causes for determination of mesne profits. The said application was allowed by the Court of Small Causes by directing the Petitioner to pay mesne profits of Rs.2,54,29,148/-. Interest was made payable at the rate of 6% per annum on the part of the amount. 4 An appeal has been preferred by the Petitioner for challenging the judgment and decree of the trial Court. In the said appeal which is pending for final hearing, the Petitioner made an application for stay. By the impugned order, the said application has been partly allowed. The operative part of the impugned order reads thus: “a) Application is allowed. b) Execution of decree under challenge is hereby stayed till final disposal of the present appeal on following conditions:--- (i) The appellants are directed to deposit 75% of the decretal amount in the court within one month from today; (ii) The Registrar of Small Causes Court, Mumbai is hereby directed to invest the said amount in any nationalised bank till the final disposal of the present appeal; (iii) The appellants to furnish security of immovable property for rest of the amount 3 103 wp.5576.11 within one month from the date of this order. I agree.” 5 The learned senior counsel appearing for the Petitioner invited attention of the Court to the impugned judgment and decree passed by the trial Court. He submitted that the said decree is patently illegal as the Respondent has suppressed the material facts and documents from the trial Court. The learned senior counsel submitted that as it can be demonstrated that the impugned judgment and decree of the trial Court is perverse, onerous condition of deposit of 75% of the decretal amount ought not have been imposed as a condition for grant of stay. He submitted that apart from imposing the said condition of deposit, the Appellate Court has directed the Petitioner to furnish security of immovable property for balance 25% amount. He submitted that the said direction is illegal and perverse. The learned counsel appearing for the Respondent supported the impugned judgment and order. 4 103 wp.5576.11 6 I have given careful consideration to the submissions. The decree which is subject matter of challenge before the Appellate Court is in the nature of a money decree. As a normal rule, the Appellant is required to deposit the decretal amount as a condition for grant of stay to a money decree. In the present case, the Petitioner - Appellant is a limited company. Looking to the nature of the findings recorded by the trial Court, no case is made out to make a departure from the normal rule. However, instead of directing the Petitioner to deposit the entire decretal amount, only 75% of the amount has been ordered to be deposited as a condition for stay. It is not possible to find fault with the said part of the impugned order. For balance amount, security of immovable property has been ordered to be furnished. 7 After having directed the Petitioner to secure 75% of the decretal amount by depositing the same, a direction to furnish security only of immovable property for the rest of the amount is very harsh and is required to be modified by permitting the Petitioner to furnish adequate security to the satisfaction of the Appellate Court. 5 103 wp.5576.11 8 Time to deposit 75% of the decretal amount deserves to be extended by a period of eight weeks from today. Sufficient time deserves to be granted to furnish security for the balance amount. 9 Hence, I pass the following order: i. The impugned judgment and order except clause (iii) of the operative part thereof is confirmed. However, time to deposit 75% of the decretal amount granted by the Appellate Court is extended by a period of eight weeks from today ; ii. Clause (iii) of the operative part of the impugned order is modified and it is directed that the Petitioner shall furnish security for the balance decretal amount to the satisfaction of the Appellate Court within a period of three months from today. iii. The Appellate Court shall hear the Respondent before accepting the Security ; 6 103 wp.5576.11 iv. It is made clear that the Appellate Court shall not insist on furnishing security of the immovable property ; v. The petition is disposed of on above terms with no order as to costs ; and vi. All contentions of the parties on merits of the appeal are kept open. [ A.S.OKA, J ]