SCA/6997/2008 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 6997 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= RAJENDRA HOUSING CORPORATION A PARTNERSHIP FIRM & 4 - Petitioner(s) Versus KANKARIA MANINAGAR NAGRIK SAHAKARI BANK LIMITED - Respondent(s) ========================================================= Appearance : MR BB NAIK for Petitioner(s) : 1 - 5. MR AJ SHASTRI for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 11/09/2008 ORAL JUDGMENT 1. Rule. Mr. Shastri learned Counsel waives service SCA/6997/2008 2/6 JUDGMENT of notice of rule on behalf of the respondent. 2. With the consent of the learned Counsel appearing for both the sides, the matter is finally heard today. 3. The short fact of the case appears to be that the award has been passed by the learned Board of Nominee on 8.12.2006, in the suit preferred by the petitioner whereby the amount of Rs. 2,36,100/-, with interest at the rate of 18 percent is ordered to be paid by the respondent bank to petitioner. Against which the respondent bank has preferred an appeal being appeal No. 10 of 2007 before the tribunal. In the said appeal application for stay was submitted. The tribunal has heard the application, and on 16.4.2008, the tribunal has granted stay against the execution of the award passed by the learned Board of Nominee. It is under these circumstances, the present petition before this Court. 4. Heard Mr. Naik learned Counsel for the petitioner and Mr. Shastri learned Counsel for the respondent-bank. 5. It is an admitted position that the award was SCA/6997/2008 3/6 JUDGMENT passed by the learned Board of Nominee of Rs. 2,36,100/- with the interest at the rate of 18 percent. The tribunal in the reasons recorded has not mentioned any strong peculiar circumstance, which may result into permitting exercise of the discretion for grant of unconditional stay in case of money decree. Normal principle in cases of money decree is that they are not to be stayed and even if, it is to be stayed, the discretion is required to be exercised on the basis of the sound principle. This Court in earlier decision has taken the view that if the bank is holding the decree or award in his favour, and the appeal is preferred, it would be proper exercise of the power to stay award passed by the learned Board of Nominee, pending the appeal, on the part of the tribunal, if 50 percent of the awarded amount is deposited, subject to the finalisation of the proceedings of the appeal. There is no reason for not to apply the said principles to the present case. Merely because the bank is facing the award is not sufficient ground. No valid ground to make a departure therefrom. If ultimately, the bank SCA/6997/2008 4/6 JUDGMENT succeeds, it can get back amount by way of restitution. Further, if the principles of prima facie case, and balance of convenience are considered, the same would be against the bank, who is the judgement debtor. Whereas, the tribunal proceeded in the reverse manner for the exercise of the discretion of stay order. It was required for the tribunal to direct respondent bank to deposit approximately 50 percent of the awarded amount for staying execution of the award with the tribunal. As the discretion is exercised for grant of stay unconditionally, it can be said that blanket stay has been granted by the tribunal, though the appellant/respondent herein is facing money decree/award of the nominee. Therefore, it would be just and proper to modify the order passed by the tribunal by directing the respondent bank to deposit Rs. 4 lakhs with the tribunal, subject to final order which may be passed by the tribunal in the appeal. 6. It deserves to be recored that as the appeal is at large pending before the tribunal, no final observations are made, on the facts and SCA/6997/2008 5/6 JUDGMENT circumstances of the case, more particularly the legality and validity of the award of the nominee, since such observations may prejudice rights of either side in the appeal at the time of final disposal. Therefore, it is found proper by this Court not to deal with the same in detailed, but suffice to state that considering the facts and circumstances the exercise of the discretion by the tribunal for granting blanket stay against execution of the money decree/award cannot be sustained. 7. Hence, impugned order passed by the tribunal is quashed and set aside, with the direction that stay against execution of the award passed by the learned Board of Nominee in Lavad Suit No. 389 of 2006 shall continue on condition that the respondent bank deposits the amount of Rs.4 lakhs with the tribunal within a period of four weeks from today. After the amount is deposited, it would be open to the either side to move tribunal for earlier hearing of the appeal, and if such request is made, the tribunal shall make an attempt to dispose of the appeal as early as SCA/6997/2008 6/6 JUDGMENT possible. It is also observed that rights and contentions of both the sides, in the appeal shall remain open, and the tribunal shall not be influenced by the order passed by this Court at the interim stage, and shall be at the liberty to take independent view of the matter. 8. Petition is partly allowed to the aforesaid extent. Rule made absolute accordingly. Direct service is permitted. (JAYANT PATEL, J.) Suresh*