: 1 : HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 34 OF 2005 IN CHAMBER SUMMONS NO. 898 OF 2004 IN EXECUTION APPLICATION NO. 335 OF 2002 Maharashtra State Electricity Board, a body corporate constituted under the provisions of the Electricity (Supply) Act, 1948 and having its office at Prakashghad, Station Road, Bandra (E), Mumbai - 400 051. ..Appellant. V E R S U S Datar Switchgear Limited & having its corporate office at F8, D Road, MIDC, Ambad, Nashik, 422 010 ..Respondent. --- Mr. N. Rai, Sr. Advocate a/w Mr. P. P. Chavan and Chandra Prakash, Abhishek Khare and Rahul Sinha i/b M/s. Khare Legal Chambers for the appellants. Mr. Rafique Dada, Sr. Advocate a/w D. J. Khambhatta, Sr. Advocate, a/w Mrs.Swati Desphande, Vaibhav Joglekar, Zubair Dada, Mukul Tally, Jamshed Ansari, Rakesh Misar, Shaikh Yusuf Ali & Rahul Pujari i/b M/s. S. Mahomedbhai & Co., for the respondents. CORAM: S.B.MHASE & A.A.SAYED, JJ. : 2 : DATE : April 21, 2009. ORAL JUDGMENT (Per S. B. Mhase, J.) 1. Heard. With the consent of the parties disposed of finally. 2. This appeal is directed against the order passed by the learned Single Judge of this Court in Chamber Summons No. 898 of 2004 on 14th December 2004. Chamber Summons No. 898 of 2004 was filed by the decree holder in Execution Petition No. 335 of 2002. By the said Chamber Summons the respondent / decree-holder has prayed that the order passed by this Court on 29thOctober 2002 in Chamber Summons No.924 of 2004 be set aside. The said prayer has been accepted by the learned Single Judge while allowing the Chamber Summons No. 898 of 2004 by order dated 14th December 2004 passed in Chamber Summons No. 898 of 2004 is under challenge before this Court. 3. It is admitted fact that the respondent is decree-holder in the above referred Execution Petition and the said decree has arisen from Arbitration PetitionNo. 473 of 2001. There was an arbitral award in favour of the respondent for Rs.76,65,049/- along with interest at the rate of 18% per annum. Therefore, Execution Petition was filed by the respondent. : 3 : 4. It is interesting to note that in between the parties, simultaneously another arbitration proceeding was pending. In the said arbitration proceeding, by way of an interim award, the respondent was directed to pay an amount of Rs.6,81,99,390/- to the appellant. Therefore in the execution petition, Chamber Summons No. 924 of 2002 was moved by the respondent. It was taken on record by consent of the parties on 29/10/2002 before the learned Single Judge (Coram: S.J.Vazifdar, J.). The adjustment was recorded by the learned Single Judge and it was decided that as against the amount of Rs.6.81 crores to be paid by the respondent, the amount ofRs.1.13 crores (i.e., Rs.76,65,049/- plus interest) is to be adjusted and thereby the decree in favour of the respondent is shown to be satisfied. However, it was made clear that the credit was subject to further orders in arbitration proceedings and in the appeal filed by the applicant being Appeal No. 1038 of 2001. . Thereafter it was expected that the appellant would make an application before the Arbitrator for the adjustment of this amount. It is interesting to note that the application was made on 21st September 2001, however the said application was withdrawn and accordingly the order has been passed by the Arbitrator which is at page 96 of the present appeal. : 4 : . In the result, when the final award was passed by the Arbitrator on 18/6/2004 in paragraph (B) of the award the Arbitrator directed that from the total amount of the award, i.e., from Rs.185,97,86,399/- the amount of Rs. 6,81,99,390/- be deducted. Thus without giving credit of the amount to the respondents, the appellant has obtained the adjustment in respect of an amount of Rs.6,81,99,390/-, which was deducted from the main award of the arbitration. Thus as a result of the conduct of the appellant the respondent became non-suited in the execution petition and has also lost in the arbitration proceedings. The amount which should have been given by the appellant was ultimately not given. To this extent there is no dispute between the parties. 5. Learned counsel for the appellant made a grievance that the respondent is not entitled to claim interest from the date of adjustment till the date of order which is under challenge. This submission is without any merit. Basically, if the adjustment was recorded, the appellant was under obligations to maintain that adjustment. In that event, the amount would not have run with interest. But in order to avoid execution petition and the rigourous steps in the execution petition, the appellant has shown that he is ready to adjust the amount, and thereby got disposed of the execution petition and thereafter took a : 5 : somersault before the Arbitrators and refused to adjust the amount. The conduct of the appellant in this whole process was to frustrate the execution petition and the rigourous actions as against the appellant and once that purpose is achieved they have disputed the adjustment and have not allowed the Arbitrator to record the adjustments. On the contrary they have obtained the order of Rs.6,81,99,390/- to be adjusted as against the amount of Rs.185,97,86,399/-. It is not the conduct of the gentleman. Public body like MSEB is indulging into such dishonest act to deny amount to the private party, is rather surprising aspect for this Court. Apart from that, even for the interest part they have come before this Court stating that the respondent is not entitled to amount of the interest. When there is adjustment given to the appellant as per the order recorded by the learned Single Judge, this Court fails to understand as to why the amount should not run with interest. If the adjustment is disobeyed by the appellants and it was not accepted by the Arbitrator because of the refusal to accept the adjustment by the appellant that order recording the adjustment was in fact rendered non-est as a result of the conduct of the appellant and therefore it does not lie in the mouth of the appellant to state that the respondent is not entitled for the interest. On the contrary, from the day one the appellant refused to record the adjustment in the arbitration proceedings, the order passed in Chamber : 6 : Summons No. 924 of 2002 stands disobeyed on the part of the appellant, and therefore the ultimate result is that the arbitral award which was executable as against the appellant stands revived with its full effect, i.e., the amount of the award along with the interest at the rate of 21% per annum. Therefore, we find no substance in the appeal and appeal is dismissed with costs. 6. At the stage of admission the appellant has given a bank guarantee. We allow the respondent to invoke the said bank guarantee and accordingly the Prothonotary and Senior Master of this Court is directed to liquidate the said bank guarantee and to pay the amount to the respondent. (A.A.SAYED, J.) (S.B.MHASE, J.)