IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 165 of 2011 Vikas Rajput ….…… Appellant Versus Adhishashi Abhiyanta, PWD, Hardwar and another …….Respondents Mr. Lok Pal Singh, Advocate for the appellant. Mr. J.P. Joshi, Chief Standing Counsel for the State / respondent No. 1. Ms. Bina Pande, Standing Counsel for the State of U.P. / respondent No. 2. Date of Judgment: 17.08.2011 JUDGMENT Coram: Hon’ble Barin Ghosh, C.J. Hon’ble V.K. Bist, J. BARIN GHOSH, C.J. (ORAL) Delay Condonation Application No. 8078 of 2011 Considering the averments made in the application for condonation of delay in preferring the appeal and being satisfied with the sufficiency of reasons for the delay, we condone the delay in preferring the appeal. Special Appeal No. 165 of 2011 Heard learned counsel for the parties on the merits of the appeal. 2. Facts, to which there appears to be no dispute are that in relation to a contract, appellant furnished two fixed deposit receipts of ` 10 lakh each. Those fixed deposit receipts were treated as security for performance of the contract. While the appellant performed the contract, it transpired that appellant is obliged to pay certain amount of money to respondent No. 1. In terms of the contract, respondent No. 1 appropriated one of those fixed deposit receipts of ` 10 lakh towards its dues. Before, however, respondent No. 1 could take steps to encash the other fixed deposit receipt, a suit was filed before Civil Judge, Patan, Madhya Pradesh where the plaintiff in the suit claimed that the said fixed deposit is for his benefit. Soon after filing of the suit, plaintiff obtained an order of injunction, restraining the bank to permit encashment of the said fixed deposit receipt without due concurrence of the plaintiff. Respondent No. 1 approached the Court at Patan, Madhya Pradesh and made a request for vacating the interim order. The Court at Patan has refused to vacate the interim order. In the circumstances, 2 respondent No. 1 has been constrained to approach before the Civil Court, Jabalpur, Madhya Pradesh. In the meantime, since a sum of ` 10,40,500/- still remained due after appropriation of the other fixed deposit receipt of ` 10 lakh, respondent No. 1 issued a notice upon the appellant and called upon him to pay the same within 15 days from the date of receipt of the said notice. Soon thereafter, but before the expiry of 15 days from the date of receipt of the said notice, respondent No. 1 approached the appropriate authority for obtaining a recovery certificate under the U.P. Land Revenue Act. Appellant, accordingly, approached the writ court and filed a writ petition contending that the said certificate was improperly obtained, in as much as 15 days’ time, as was given to the appellant, did not expire before the certificate was issued and that, in any event, sum of ` 10 lakh, in the form of fixed deposit receipt, still lies with respondent No. 1, which respondent No. 1 is bound in terms of the contract to appropriate towards its dues. By the judgment and order under appeal, the writ petition has been dismissed. 3. Without going into the controversies and in view of the submissions made by the learned counsel for the appellant, we propose to dispose of the appeal on the following terms: I. Until one month from today, there shall be unconditional stay of execution of the certificate. II. Within one month from today, appellant shall deposit a sum of ` 10,40,500/- with respondent No. 1, which sum respondent No. 1 shall be entitled to appropriate towards its dues. III. In the event within one month from today the amount of ` 10,40,500/- is not deposited by the appellant with respondent No. 1, the unconditional stay of the certificate, as above, shall stand vacated. IV. In the event of payment of ` 10,40,500/- by the appellant to respondent No. 1, respondent No. 1 shall, in the event it is permitted by the Court at Patan, Madhya Pradesh or by the Civil Court, Jabalpur to encash the fixed deposit, it shall do so and pay the proceeds alongwith all accrued interest to the appellant. 4. This disposes of the appeal. (V.K. Bist, J.) (Barin Ghosh, C.J.) 17.08.2011 17.08.2011 Amit 3