1 IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL ORIGINAL ORIGINAL CIVIL JURISDICTION CIVIL JURISDICTION CIVIL JURISDICTION NOTICE NOTICE NOTICE OF OF OF MOTION NO.2643 OF 2006 MOTION NO.2643 OF 2006 MOTION NO.2643 OF 2006 inin in SUIT SUIT SUIT NO. NO. NO. 1495 OF 1989 1495 OF 1989 1495 OF 1989 National National National Bank Bank Bank for Agri.& Rural .. Plaintiff for Agri.& Rural .. Plaintiff for Agri.& Rural .. Plaintiff Development Development Development vs vs vs M/s M/s M/s Shah Thakur & sons & anr.. Shah Thakur & sons & anr.. Shah Thakur & sons & anr.. Defendants Defendants Defendants Mr.J.J.Bhat,Sr.Ad. Mr.J.J.Bhat,Sr.Ad. Mr.J.J.Bhat,Sr.Ad. a/w a/w a/w Mr.Pravin R.Diwan,Ms.Alpana Mr.Pravin R.Diwan,Ms.Alpana Mr.Pravin R.Diwan,Ms.Alpana Ghone Ghone Ghone i/b i/b i/b Kanga & Co for Plaintiff Kanga & Co for Plaintiff Kanga & Co for Plaintiff Mr.Hansaria Mr.Hansaria Mr.Hansaria Sr.Adv.a/w Sr.Adv.a/w Sr.Adv.a/w Mr.Dasgupta i.bnDenzil Mr.Dasgupta i.bnDenzil Mr.Dasgupta i.bnDenzil D’Mello D’Mello D’Mello for Defendant no.1 for Defendant no.1 for Defendant no.1 Mr.D.G.Dhanure Mr.D.G.Dhanure Mr.D.G.Dhanure i.b M/s M.V.Kini & Co for i.b M/s M.V.Kini & Co for i.b M/s M.V.Kini & Co for Intervenor Intervenor Intervenor CORAM CORAM CORAM : A.M.Khanwilkar, J : A.M.Khanwilkar, J : A.M.Khanwilkar, J DATED DATED DATED : : : 11th October, 2007 11th October, 2007 11th October, 2007 P.C. P.C. P.C. 1.1.1. By this motion, the plaintiffs have prayed By this motion, the plaintiffs have prayed By this motion, the plaintiffs have prayed for for for the the the following reliefs : following reliefs : following reliefs : a)a) a) that this Hon’ble Court be pleased to set that this Hon’ble Court be pleased to set that this Hon’ble Court be pleased to set aside aside aside and/or vary the order dated 11th July, and/or vary the order dated 11th July, and/or vary the order dated 11th July, 2006 2006 2006 passed in Notice of Motion No.1781 of passed in Notice of Motion No.1781 of passed in Notice of Motion No.1781 of 2006 2006 2006 and Notice of Motion No.3058 of 2005; and Notice of Motion No.3058 of 2005; and Notice of Motion No.3058 of 2005; b) b) b) pending pending pending the hearing and final disposal of the hearing and final disposal of the hearing and final disposal of the the the Notice of Motion operation of order Notice of Motion operation of order Notice of Motion operation of order dated dated dated 11th 11th 11th July, 2006 be stayed; July, 2006 be stayed; July, 2006 be stayed; b-1) b-1) b-1) that that that the respondent be restrained by an the respondent be restrained by an the respondent be restrained by an order order order and injunction of this Hon’ble court and injunction of this Hon’ble court and injunction of this Hon’ble court from from from withdrawing withdrawing withdrawing any amount whatsoever lying any amount whatsoever lying any amount whatsoever lying deposited deposited deposited with this Hon’ble Court to the with this Hon’ble Court to the with this Hon’ble Court to the credit credit credit of of of the Suit No.1495 of 1989. the Suit No.1495 of 1989. the Suit No.1495 of 1989. c)c) c) for interim and ad interim reliefs in for interim and ad interim reliefs in for interim and ad interim reliefs in terms terms terms of of of prayer (b) and (b-1) above ; prayer (b) and (b-1) above ; prayer (b) and (b-1) above ; d) d) d) for costs of this Notice of Motion; and for costs of this Notice of Motion; and for costs of this Notice of Motion; and e)e) e) for such further and other releifs as the for such further and other releifs as the for such further and other releifs as the nature nature nature and circumstances of the case may and circumstances of the case may and circumstances of the case may require. require. require. 2.2.2. The background in which this motion is filed, The background in which this motion is filed, The background in which this motion is filed, 2 isisis that, the plaintiffs had filed a notice of that, the plaintiffs had filed a notice of that, the plaintiffs had filed a notice of Motion Motion Motion No.1781 of 2006 in this Court praying for a No.1781 of 2006 in this Court praying for a No.1781 of 2006 in this Court praying for a declaration declaration declaration that the said defendants are liable to that the said defendants are liable to that the said defendants are liable to pay pay pay interest to the plaintiff against the amount interest to the plaintiff against the amount interest to the plaintiff against the amount which which which was deposited by the plaintiff in this Court. was deposited by the plaintiff in this Court. was deposited by the plaintiff in this Court. 3.3.3. The plaintiff also filed Notice of motion The plaintiff also filed Notice of motion The plaintiff also filed Notice of motion No.3088 No.3088 No.3088 of 2005, in the pending suit for specific of 2005, in the pending suit for specific of 2005, in the pending suit for specific performance. performance. performance. In that motion, the plaintiff prayed In that motion, the plaintiff prayed In that motion, the plaintiff prayed for for for permission to withdraw the amount deposited in permission to withdraw the amount deposited in permission to withdraw the amount deposited in this this this Court. While the said Notice of Motions was Court. While the said Notice of Motions was Court. While the said Notice of Motions was pending, pending, pending, the parties filed consent minutes of the the parties filed consent minutes of the the parties filed consent minutes of the order order order signed by the advocates for the parties on signed by the advocates for the parties on signed by the advocates for the parties on 11th 11th 11th July, 2006. The same reads thus : July, 2006. The same reads thus : July, 2006. The same reads thus : Consent Consent Consent Minutes of the Order Minutes of the Order Minutes of the Order . The parties agree to the following The parties agree to the following The parties agree to the following interim interim interim arrangement. arrangement. arrangement. 1.1.1. Rs.8,74,50,000 be withdrawn by the Rs.8,74,50,000 be withdrawn by the Rs.8,74,50,000 be withdrawn by the plaintiff plaintiff plaintiff lying deposited with Hon’ble Court lying deposited with Hon’ble Court lying deposited with Hon’ble Court with with with accrued interest on Rs,17,49,00,000/- accrued interest on Rs,17,49,00,000/- accrued interest on Rs,17,49,00,000/- up up up to the date of withdrawal by the 1st to the date of withdrawal by the 1st to the date of withdrawal by the 1st Defendant Defendant Defendant of Rs.8,74,50,000 and thereafter of Rs.8,74,50,000 and thereafter of Rs.8,74,50,000 and thereafter with with with accrued interest on the balance sum of accrued interest on the balance sum of accrued interest on the balance sum of Rs.8,74,50,000/-. Rs.8,74,50,000/-. Rs.8,74,50,000/-. 2.2.2. Rs.2,50,00,000 be withdrawn by the Rs.2,50,00,000 be withdrawn by the Rs.2,50,00,000 be withdrawn by the plaintiff plaintiff plaintiff lying deposited with this Hon’ble lying deposited with this Hon’ble lying deposited with this Hon’ble Court. Court. Court. 3.3.3. Out of balance 50% principal amount Out of balance 50% principal amount Out of balance 50% principal amount (Rs.8,74,50,000) (Rs.8,74,50,000) (Rs.8,74,50,000) deposited by the plaintff deposited by the plaintff deposited by the plaintff and and and withdrawn by the defendant no.1 under withdrawn by the defendant no.1 under withdrawn by the defendant no.1 under the the the order of the Hon’ble Supreme Court dated order of the Hon’ble Supreme Court dated order of the Hon’ble Supreme Court dated 11/12/1991, 11/12/1991, 11/12/1991, the plaontiff will withdrawn the plaontiff will withdrawn the plaontiff will withdrawn Rs.5,54,50,000 Rs.5,54,50,000 Rs.5,54,50,000 (Rs.8,74,50,000/- less amount (Rs.8,74,50,000/- less amount (Rs.8,74,50,000/- less amount awarded awarded awarded by the arbitrator Rs.3,20,00,000/-) by the arbitrator Rs.3,20,00,000/-) by the arbitrator Rs.3,20,00,000/-) 4.4.4. Interest at the rate of 6 % p.a. on Interest at the rate of 6 % p.a. on Interest at the rate of 6 % p.a. on Rs.5,54,50,000/- Rs.5,54,50,000/- Rs.5,54,50,000/- from the date of respected from the date of respected from the date of respected withdrawal withdrawal withdrawal by the defendant no.1 till by the defendant no.1 till by the defendant no.1 till 31/12/2005 31/12/2005 31/12/2005 would remain deposited with this would remain deposited with this would remain deposited with this Hon’ble Hon’ble Hon’ble Court. This amount comes to Court. This amount comes to Court. This amount comes to Rs.4,33,16,611 Rs.4,33,16,611 Rs.4,33,16,611 which amount shall be which amount shall be which amount shall be invested invested invested in fixed deposited (Calculation in fixed deposited (Calculation in fixed deposited (Calculation sheet sheet sheet enclosed). enclosed). enclosed). 3 5.5.5. Balance amount of Rs.1,61,86,707 Balance amount of Rs.1,61,86,707 Balance amount of Rs.1,61,86,707 (Rs.11,49,53,318-(Rs.5,54,50,000 (Rs.11,49,53,318-(Rs.5,54,50,000 (Rs.11,49,53,318-(Rs.5,54,50,000 + + + Rs.4,33,16,611) Rs.4,33,16,611) Rs.4,33,16,611) deposited by M/s Manish deposited by M/s Manish deposited by M/s Manish Estates Estates Estates Pvt Ltd through Canara Bank on Pvt Ltd through Canara Bank on Pvt Ltd through Canara Bank on behalf behalf behalf of defendant no.1 be withdrawn back of defendant no.1 be withdrawn back of defendant no.1 be withdrawn back by by by M/s M/s M/s Manish Estates Pvt.Ltd. Manish Estates Pvt.Ltd. Manish Estates Pvt.Ltd. 6.6.6. Bank guarantees issued by Andhra Bank on Bank guarantees issued by Andhra Bank on Bank guarantees issued by Andhra Bank on 25/6/1992 25/6/1992 25/6/1992 and and and by Allahabad Bank on 24/2/1994 by Allahabad Bank on 24/2/1994 by Allahabad Bank on 24/2/1994 on on on behalf of defendant no. 1 shall get behalf of defendant no. 1 shall get behalf of defendant no. 1 shall get stand stand stand discharged. Prothonotary and Senior discharged. Prothonotary and Senior discharged. Prothonotary and Senior Master Master Master of this Hon’ble Court to act of this Hon’ble Court to act of this Hon’ble Court to act accordingly accordingly accordingly forthwith,. forthwith,. forthwith,. 7.7.7. The above arrangement is without The above arrangement is without The above arrangement is without prejudice prejudice prejudice to the rights and contentions of to the rights and contentions of to the rights and contentions of the the the parties in the present suit and in the parties in the present suit and in the parties in the present suit and in the arbitration arbitration arbitration appeal appeal appeal Lodg.No.9 of 2006 pending Lodg.No.9 of 2006 pending Lodg.No.9 of 2006 pending before before before Division Bench of this Hon’ble Court. Division Bench of this Hon’ble Court. Division Bench of this Hon’ble Court. 8.8.8. Prothonotary and Senior Master of this Prothonotary and Senior Master of this Prothonotary and Senior Master of this Hon’ble Hon’ble Hon’ble Court to disburse the amount as Court to disburse the amount as Court to disburse the amount as aforesaid aforesaid aforesaid to the respective parties within to the respective parties within to the respective parties within one one one week. week. week. Both Both Both the NMs be listed after 4 weeks. the NMs be listed after 4 weeks. the NMs be listed after 4 weeks. 4.4.4. In the original Consent Minutes of Order, it is In the original Consent Minutes of Order, it is In the original Consent Minutes of Order, it is seen seen seen that at various places, corrections are that at various places, corrections are that at various places, corrections are carried carried carried out by hand, right from the description of out by hand, right from the description of out by hand, right from the description of the the the documents to insert the word "consent" documents to insert the word "consent" documents to insert the word "consent" preceeding preceeding preceeding the words " Minutes of the Order". the words " Minutes of the Order". the words " Minutes of the Order". Corrections Corrections Corrections so carried out have been initialled by so carried out have been initialled by so carried out have been initialled by advocates advocates advocates for both the sides. I am informed that for both the sides. I am informed that for both the sides. I am informed that the the the matter was called out at 11 a.m. In view of matter was called out at 11 a.m. In view of matter was called out at 11 a.m. In view of the the the deliberations that took place in Court, it was deliberations that took place in Court, it was deliberations that took place in Court, it was suggested suggested suggested to the parties that minutes of the order to the parties that minutes of the order to the parties that minutes of the order be be be presented by the parties after the lunch break presented by the parties after the lunch break presented by the parties after the lunch break atatat 3 3 3 p.m. Accordingly, document Exhibit C which is p.m. Accordingly, document Exhibit C which is p.m. Accordingly, document Exhibit C which is already already already extracted in its entirety in the earlier extracted in its entirety in the earlier extracted in its entirety in the earlier part part part of this order came to be presented by the of this order came to be presented by the of this order came to be presented by the parties parties parties titled titled titled as Consent Minutes of Order. On the as Consent Minutes of Order. On the as Consent Minutes of Order. On the basis basis basis of the said Consent Minutes of Order, the of the said Consent Minutes of Order, the of the said Consent Minutes of Order, the Court Court Court proceeded to pass the order on 11th July, proceeded to pass the order on 11th July, proceeded to pass the order on 11th July, 4 2006 2006 2006 which reads thus : which reads thus : which reads thus : Coram: Coram: Coram: Smt Nishita Mhatre, J Smt Nishita Mhatre, J Smt Nishita Mhatre, J Date: Date: Date: 11th July, 2006 11th July, 2006 11th July, 2006 1.1.1. Parties tender Consent Minutes of the Parties tender Consent Minutes of the Parties tender Consent Minutes of the Order Order Order signed by the Advocates for the signed by the Advocates for the signed by the Advocates for the Plaintiffs Plaintiffs Plaintiffs and Defendant No.1. Consent and Defendant No.1. Consent and Defendant No.1. Consent Terms Terms Terms taken on record and marked X for taken on record and marked X for taken on record and marked X for identification. identification. identification. 2.2.2. Order in terms of the Consent Minutes of Order in terms of the Consent Minutes of Order in terms of the Consent Minutes of the the the Order. Order. Order. 3.3.3. This order will continue pending the This order will continue pending the This order will continue pending the hearing hearing hearing and and and final disposal of the Motions. final disposal of the Motions. final disposal of the Motions. 4.4.4. Motions to be listed on 29th August, Motions to be listed on 29th August, Motions to be listed on 29th August, 2006. 2006. 2006. 5.5.5. Certified copy expedited. Certified copy expedited. Certified copy expedited. 5.5.5. The plaintiffs have now approached this Court The plaintiffs have now approached this Court The plaintiffs have now approached this Court by by by way way way of present Notice of Motion No.2643 of 2006, of present Notice of Motion No.2643 of 2006, of present Notice of Motion No.2643 of 2006, for for for setting aside the said order dated 11th July, setting aside the said order dated 11th July, setting aside the said order dated 11th July, 2006 2006 2006 interalia on the following assertions: interalia on the following assertions: interalia on the following assertions: 1.1.1. I say that when the said matters reached I say that when the said matters reached I say that when the said matters reached hearing hearing hearing on 11th July, 2006 Consent Minutes on 11th July, 2006 Consent Minutes on 11th July, 2006 Consent Minutes of of of Interim order were filed by the parties Interim order were filed by the parties Interim order were filed by the parties inin in respect respect respect of the amounts to be withdrawn by of the amounts to be withdrawn by of the amounts to be withdrawn by the the the plaintiffs and defendant no.1 and the plaintiffs and defendant no.1 and the plaintiffs and defendant no.1 and the balance balance balance to remain deposited in this Hon’ble to remain deposited in this Hon’ble to remain deposited in this Hon’ble Court. Court. Court. This order is without prejudice to This order is without prejudice to This order is without prejudice to the the the respective respective respective rights and contentions of the rights and contentions of the rights and contentions of the parties parties parties hereto. I say that as per the said hereto. I say that as per the said hereto. I say that as per the said Consent Consent Consent Minutes of Order there were a Minutes of Order there were a Minutes of Order there were a statement statement statement annexed which explains the entire annexed which explains the entire annexed which explains the entire calculations. calculations. calculations. I say that due to oversight I say that due to oversight I say that due to oversight and/or and/or and/or inadvertence on the part of the inadvertence on the part of the inadvertence on the part of the plaintiff’s plaintiff’s plaintiff’s advocates, advocates, advocates, an error has crept in an error has crept in an error has crept in the the the said Consent Minutes of Order. I say said Consent Minutes of Order. I say said Consent Minutes of Order. I say that that that the the the Consent Minutes of Order dated 11th Consent Minutes of Order dated 11th Consent Minutes of Order dated 11th July, July, July, 2006 in paragraphs 3 and 4 records as 2006 in paragraphs 3 and 4 records as 2006 in paragraphs 3 and 4 records as follows follows follows : : : 3.3.3. Out of the balance 50 % principal amount Out of the balance 50 % principal amount Out of the balance 50 % principal amount (Rs.8,74,50,000/-) (Rs.8,74,50,000/-) (Rs.8,74,50,000/-) deposited by the deposited by the deposited by the plaintiff plaintiff plaintiff and withdrawn by defendant no.1 and withdrawn by defendant no.1 and withdrawn by defendant no.1 under under under the order of the Hon’ble Supreme Court the order of the Hon’ble Supreme Court the order of the Hon’ble Supreme Court dated dated dated 11/12/1991 the plaintiff will withdraw 11/12/1991 the plaintiff will withdraw 11/12/1991 the plaintiff will withdraw Rs.5,54,50,000/- Rs.5,54,50,000/- Rs.5,54,50,000/- (Rs.8,74,50,000 less amount (Rs.8,74,50,000 less amount (Rs.8,74,50,000 less amount awarded awarded awarded by the arbitrator Rs.3,20,00,000/-) by the arbitrator Rs.3,20,00,000/-) by the arbitrator Rs.3,20,00,000/-) 4.4.4. Interest at the rate of 6 % p.a. on Interest at the rate of 6 % p.a. on Interest at the rate of 6 % p.a. on Rs.5,54,50,000/- Rs.5,54,50,000/- Rs.5,54,50,000/- from the date of respected from the date of respected from the date of respected withdrawal withdrawal withdrawal by Defendant no. 1 till by Defendant no. 1 till by Defendant no. 1 till 31/12/2005 31/12/2005 31/12/2005 would remain deposited with this would remain deposited with this would remain deposited with this 5 Hon’ble Hon’ble Hon’ble Court till further orders. This Court till further orders. This Court till further orders. This amount amount amount comes to Rs.4,33,16,611 which amount comes to Rs.4,33,16,611 which amount comes to Rs.4,33,16,611 which amount shall shall shall be invested in fixed deposit be invested in fixed deposit be invested in fixed deposit (Calculation (Calculation (Calculation sheet sheet sheet enclosed). enclosed). enclosed). . I say that both the Notices of Motion I say that both the Notices of Motion I say that both the Notices of Motion no.3058 no.3058 no.3058 of 2005 and No.1781 of 2006 are of 2005 and No.1781 of 2006 are of 2005 and No.1781 of 2006 are pending pending pending the hearing and final disposal. the hearing and final disposal. the hearing and final disposal. Hereto Hereto Hereto annexed and marked Exhibit B is a annexed and marked Exhibit B is a annexed and marked Exhibit B is a copy copy copy of the said Order dated 11th July, of the said Order dated 11th July, of the said Order dated 11th July, 2006. 2006. 2006. 23. 23. 23. I say and submit that the aforesaid I say and submit that the aforesaid I say and submit that the aforesaid mistake mistake mistake is on account of a genuine error in is on account of a genuine error in is on account of a genuine error in calculations calculations calculations and misunderstanding on the and misunderstanding on the and misunderstanding on the part part part of the plaintiff’s advocates. I say of the plaintiff’s advocates. I say of the plaintiff’s advocates. I say that that that the plaintiff is entitled to as per the plaintiff is entitled to as per the plaintiff is entitled to as per prayer prayer prayer clause (d) of Notice of Motion clause (d) of Notice of Motion clause (d) of Notice of Motion no.3058 no.3058 no.3058 of 2005 to withdraw the sum of of 2005 to withdraw the sum of of 2005 to withdraw the sum of Rs.8,74,50,000/- Rs.8,74,50,000/- Rs.8,74,50,000/- together with interest together with interest together with interest thereon thereon thereon at at at therate of 13 % p.a. with effect therate of 13 % p.a. with effect therate of 13 % p.a. with effect from from from the date on which the said amount was the date on which the said amount was the date on which the said amount was withdrawn withdrawn withdrawn by defendant no.1 from the amount by defendant no.1 from the amount by defendant no.1 from the amount deposited deposited deposited by the plaintiffs in this Hon’ble by the plaintiffs in this Hon’ble by the plaintiffs in this Hon’ble Court Court Court till till till payment after deducting therefrom payment after deducting therefrom payment after deducting therefrom a sum of Rs.3,20,00,000/- together with sum of Rs.3,20,00,000/- together with sum of Rs.3,20,00,000/- together with interest interest interest thereon at 15% per annum with thereon at 15% per annum with thereon at 15% per annum with effect effect effect from 22nd March, 2004 till 13th from 22nd March, 2004 till 13th from 22nd March, 2004 till 13th April, April, April, 2004. 2004. 2004. 24. 24. 24. I say that as per the Consent Minutes I say that as per the Consent Minutes I say that as per the Consent Minutes of of of Order dated 11th July, 2006 the Order dated 11th July, 2006 the Order dated 11th July, 2006 the plaintiffs plaintiffs plaintiffs are entitled to interest only on are entitled to interest only on are entitled to interest only on Rs.5,54,00,000/- Rs.5,54,00,000/- Rs.5,54,00,000/- and the 1st defendant is and the 1st defendant is and the 1st defendant is impliedly impliedly impliedly entitled to interest on entitled to interest on entitled to interest on Rs.3,20,00,000/- Rs.3,20,00,000/- Rs.3,20,00,000/- from the date of the from the date of the from the date of the withdrawal withdrawal withdrawal by the 1st defendcant against by the 1st defendcant against by the 1st defendcant against Bank Bank Bank guarantee which as per the Award the guarantee which as per the Award the guarantee which as per the Award the learned learned learned Arbitrators have specifically Arbitrators have specifically Arbitrators have specifically rejected rejected rejected the claim of the1st defendant for the claim of the1st defendant for the claim of the1st defendant for interest interest interest pendente lite and have awarded pendente lite and have awarded pendente lite and have awarded interest interest interest to the 1st defendant only from the to the 1st defendant only from the to the 1st defendant only from the date date date of of of the Award