1 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 840 OF 2009 IN EXECUTION APPLICATION (L) NO. 363 OF 2009 IN ADMIRALITY SUIT NO. 77 OF 1996 Forsythe Trading Services Ltd. … Plaintiff. Versus M.V. Niizuru .… Defendant. Mr. Janak Dwarkadas, Senior Counsel a/w Mr. Rahul Narichania a/w Ms. Aarti Shah i/b Mulla & Mulla & Craigie Blunt & Caroe for the Plaintiff. Mr. P.S. Pratap a/w Mr. M.R. Khatri for the Defendant. CORAM: V.M.KANADE, J. DATED: 9TH MARCH, 2010. P.C. 1. This Chamber Summons is taken out by the Decree- Holder for direction, directing the Prothonotary & Sr. Master, High Court, Bombay to invoke the Bank Guarantee issued by State Bank of India, Overseas Branch, Mumbai and to pay the proceeds alongwith interest and costs to the Advocates for the 2 Plaintiff in satisfaction of the decree in the Admiralty Suit No. 77 of 1996 and in the alternative for a direction to the Prothonotary & Senior Master to invoke the Bank Guarantee and deposit the net proceeds together with interest accrued thereon as on the date of invocation alongwith costs and deposit the same in this Court pending further orders and directions of this Court. 2. I have heard the learned senior counsel appearing on behalf of the Decree-Holder and the learned counsel appearing on behalf of the Judgment Debtor. At the outset, Shri Dwarkadas, learned senior counsel appearing on behalf of the Decree Holder submitted that he does not press for prayer clause (a) in the Chamber Summons and he seeks leave and liberty to take out appropriate proceedings at the subsequent stage if required. 3. Brief facts are as under: In the Admiralty Suit filed by the Plaintiff, a Judgment and decree was passed on 27th February, 2004 and Appeal was preferred against the said judgment and decree by the 3 Judgment Debtor. However, the decree was confirmed in Appeal by judgment and order dated 17th October, 2008. Special Leave Petition preferred by the Judgment Debtor was also dismissed by the Apex Court on 17th December, 2008. During the pendency of the suit, this Court had by an order dated 12th July, 1996 directed the Defendant to give a Bank Guarantee in favour of the Prothonotary and Senior Master in order to secure the claim of the Plaintiff and had permitted the Defendant to take his vessel out of the jurisdiction of this Court. In view of the said order, Bank Guarantee was given by the Defendant and upon furnishing the said Bank Guarantee. The Defendant was permitted to take his vessel. The Bank Guarantee thereafter is extended from time to time and as of today Bank Guarantee is in force till July, 2010. 4. The Present Chamber Summons has been filed by the Decree Holder in the Execution Proceeding since the Decree had become final and in spite of that the Defendant had neither paid the decretal amount to Decree Holder nor deposited the amount in this Court. 4 5. Shri Dwarakadas, learned senior counsel appearing on behalf of the Decree Holder submitted that the Judgment Debtor initially has written a letter dated 5th January, 2009 expressing his willingness to pay the decretal amount directly to the Plaintiff. However, thereafter, on one reason or the other, the Judgment Debtor did not pay the said amount by raising various false fictitious contentions and thereafter started making various allegations against the Solicitors and Lawyers of the Plaintiff and also started questioning very existence of the Plaintiff. He invited my attention to the correspondence between the parties as beginning from letter dated 5th January, 2009 and the subsequent correspondence between the parties. He submitted that the intention of the Defendant therefore was not genuine and the Defendant merely had made a false show of his willingness to deposit decretal amount in the Bank Account of the Plaintiff. Shri Dwarkadas, learned senior counsel submitted that the intention of the Defendant was to obtain the Bank Account Number of the Plaintiff in order to further harass the Plaintiff by various means. He submitted that each and every querry raised by the Defendant is satisfied by the Plaintiff and the Plaintiff had 5 supplied necessary documents, which is evident from the correspondence which was exchanged between the parties. He submitted that the Defendant had given a solemn undertaking to this Court and he had once provided security in the event decree was passed against him and only under those circumstances, this Court had permitted to the Defendant to take his vessel out of the jurisdiction of this Court and Defendant therefore, secured the claim of the Plaintiff by giving Bank Guarantee. It is submitted that since the Special Leave Petition filed by the Defendant had been dismissed, the Plaintiff was entitled to seek directions from this court for invocation of the Bank Guarantee by the Prothonotary and Senior Master. 6. Shri Pratap, learned counsel appearing on behalf of the Defendant vehemently opposed the said submissions made by the learned Senior Counsel appearing on behalf of the Plaintiff. He submitted that under Order XXI, Rule 1 of the Civil Procedure Code one of the mode of the payment of the decretal amount was to pay the amount directly to the Decree Holder. He submitted that the Defendant had shown his willingness to 6 pay the said amount and had asked the Bank Account number of the Plaintiff so that money could be deposited. He submitted that however, after taking some time, the Solicitor of the Plaintiff asked the Defendant to deposit the decretal amount partly in the account of his lawyer from Greece and partly in the account of the Solicitor of the Plaintiff in Mumbai. According to Shri Pratap, learned counsel for the Defendant on account of the said correspondence, the Defendant became a suspicious and started questioning very existence of the Plaintiff. He submitted that therefore, the Defendant refused to deposit the said amount in the account of the said two lawyers since they are third parties. 7. On the other hand, Shri Dwarkadas, learned Senior Counsel appearing for the Plaintiff submitted that all the particulars are furnished to the Defendant to show that proper resolution had been passed which was duly notarized however, in spite of that the said amount was not paid. Shri Pratap, learned counsel appearing for the Defendant on the other hand submitted that Defendant was justified in not depositing the amount in the account of the third parties. When a querry 7 was made by this Court, to the counsel for the Defendant whether the Defendant is willing to deposit the amount in this Court, he submitted that Bank Guarantee already has been given by the Defendant. Learned counsel appearing on behalf of the Defendant invited my attention towards paragraph No.4 of the reply, wherein it is mentioned that after investigation, according to the Defendants the very existence of the Decree Holder was doubtful. Secondly, it was only a company on paper and that there are no assets, employees or business activities of the company and the power of attorney under which suit was filed is not valid and entire proceedings were without any valid authority recognized by law in India and that the associate company of the Decree Holder had gone into liquidation. In the affidavit in reply, it is stated that since the Judgment Debtor is ready and willing to satisfy the decree and make payment directly to the Decree Holder, the question of invoking Bank Guarantee does not arise. It is further stated in the reply that the power of attorney attached to the Chamber Summons is not valid since it was not signed by the Director of the Company by that time. 8 8. The second submission made by the learned counsel for the Defendant is that the payment of interest by the Defendant would stop from 5th January, 2009 which was date from which the Defendant has expressed his willingness to pay the decretal amount directly to the Plaintiff. He invited my attention to the provisions of Order XXI, Rule 1 of Civil Procedure Code and submitted that interest therefore would not be payable from 6th January, 2009. 9. In my view, there is no merit in the submission made by the learned counsel for the Defendant. I have perused correspondence between the parties. The correspondence between the parties clearly shows that the Defendant never had actual or genuine intention of making payment of the decretal amount to the Plaintiff directly. On the contrary, the correspondence clearly reveals that the Defendant wanted to defeat the claim of the Plaintiff which was finally adjudicated by the dismissal of the Special Leave Petition by the Apex Court by raising various false and fictitious contentions. The Judgment Debtor has no right to question the method and manner in which the Decree Holder intends to spend the decretal amount. 9 As long as the Court passes the decree it has to be discharged by making payment by the Judgment Debtor. The Defendant cannot question the Decree Holder as to what he intents to do after the amount is received by him. In my view, the apprehension expressed by Shri Dwarkadas, learned senior counsel appearing on behalf of the Plaintiff is not unfounded. The various letters between the parties clearly indicate that the only intention of the Defendant appears to be to find out the account number of the Plaintiff. If the intention of the Judgment Debtor was genuine in discharging the decree by making the payment to the Plaintiff, he could have very well asked this Court to invoke the Bank Guarantee and pay the decretal amount to the Plaintiff. Instead of doing that, the Defendant insisted that the Plaintiff should give his bank account number. The apprehension expressed by Shri Dwarkadas, learned senior counsel appearing on behalf of the Plaintiff cannot be said to be unfounded as can be seen from the subsequent correspondence between the parties and the allegations which are now made by the Defendant. It is rather unfortunate that allegations are also made against the plaintiff of money laundering through his Solicitor. It clearly indicates that after 10 having lost his case in all the courts, the Defendant is now trying to delay and defeat the right of the Plaintiff to get the decretal amount. Shri Dwarkadas, learned senior counsel for the Plaintiff, in terms, stated that he does not press prayer clause (a) at this stage. Number of submissions were made by the learned counsel for the Defendant about the very existence of the Plaintiff. When the querry was made by this Court to the Defendant’s counsel as to whether he had taken any steps by filing a Chamber Summons in the Execution Application, the learned counsel admitted that no such proceedings had been initiated by the Defendant. The Defendant, thus, did not raise this issue either in the written statement or in Appeal or before the Apex Court and now some new contentions are sought to be raised when the plaintiff had demanded the decretal amount. Under these circumstances, therefore, in my view, the Plaintiff has made out a case for directions to the Prothonotary & Senior Master, High Court, Bombay to invoke the Bank Guarantee. 10. So far as the second contention of the learned counsel appearing on behalf of the Defendant is concerned the 11 said contention, in my view, is totally misconceived. Order XXI, Rule 1 of the Civil Procedure Code, proviso reads as under: “1. Modes of paying money under decree – (1) All money, payable under a decree shall be paid as follows, namely:- a) by deposit into the Court whose duty it is to execute the decree, or sent to that Court by postal money order or through a bank; or b) out of Court, to the decree-holder by postal money order or through a bank, or by any other mode wherein payment is evidenced in writing; or (c) otherwise, as the Court, which made the decree, directs.” 11. In the present case, it is an admitted position that though the Defendant had offered to pay the decretal amount directly to the Plaintiff, in fact no such payment was made and, as a result, the Plaintiff had to write several letters to the Defendant and every querry raised by the Defendant in his 12 reply was satisfactorily replied by the Plaintiff and even then the said request was not accepted. If the Defendant had a genuine desire to pay the decretal amount, he could have deposited the decretal amount in this Court on 5th January, 2009 or would have asked the Prothonotary & Senior Master to invoke the Bank Guarantee. Had the Defendant made such a request to the Prothonotary or deposited the amount in this court, then, in that case, the Defendant could have asked this Court not to calculate interest from such date of deposit or such request of invocation of Bank Guarantee. Perusal of the said proviso, clearly indicates that only if the amount is deposited, then the interest would stop from that day. In these circumstances, therefore, there is no merit in the contention raised by the Defendant’s counsel. 12. It is rather unfortunate that this court had permitted the Defendant to take away his vessel out of the jurisdiction of this Court because of solemn assurance which was given by the Defendant that he would give Bank Guarantee as a security. However, even after the decree was confirmed by the Apex Court almost for a period of one year the Defendant has 13 successfully avoided the payment of decretal amount to the Plaintiff by raising various false and fictitious issues. In my view, therefore, the Court should be slow hereinafter, while accepting the offer given by the Defendant to get his vessel released from the jurisdiction of this Court by offering Bank Guarantee. One would have thought that after giving this Bank Guarantee, the Defendant would not raise any objection to the prayer of invocation of the Bank Guarantee. However, this Chamber Summons has been opposed tooth and nail and very submission made by the counsel for the Plaintiff is very vehemently opposed by the Defendant’s counsel. 13. Under these circumstances, therefore, Chamber Summons is allowed in terms of prayer clause (b). 14. The Prothonotary and Senior Master, High Court, Bombay is directed to deposit the amount in U.S.Dollar Currency Bank Account and is required to invest the same. Liberty is granted to the Plaintiff to apply to this Court for further orders to release the amount in terms of prayer clause (a). 14 15. At this stage, Shri P.S. Pratap learned counsel appearing on behalf of the Defendant seeks to stay of this order for a period of four weeks. In my view, since the amount is not being paid to the Plaintiff and since considerable time has lapsed after the decree has become final, request for stay is not granted. However, the said amount shall not be paid to the Plaintiff for a period of four weeks from today. 16. Chamber Summons is accordingly allowed. 17. Certified copy is expedited. (V.M. KANADE, J.)