Final Order 1

Order Details: Notice of Motion
Pdf Text: : 1 : Notice of Motion No.1500 of 2018
CNR No.MHCC010047022018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1500 OF 2018
IN
SUIT NO.9723 OF 1991
Posh Semco Pte. Ltd. .. Plaintiff/
Applicant
Versus
Micoperi Ocean Transport Inc. .. Defendant
Ld. Advocate Smruti Jha for plaintiff.
None for defendant.
CORAM : HIS HONOUR JUDGE
SHRI ANAND L. YAWALKAR
(COURT ROOM NO. 31)
DATED : 03.09.2018
: ORDER :
This Notice of Motion is taken out by plaintiff to decree the
suit on admission of defendant No.1 recorded in minutes dated
02.05.1991 along with interest 21% p.a. and for withdrawal of the
deposited amount with this court.
2. Plaintiff had filed the suit for recovery of dues on the basis of
invoices issued under Hire Charter Party Agreement with defendant
no. 1. Wherein as the amount was payable by defendant No. 2 to
defendant No. 1 and therefore defendant No. 2 was joined as party in
the suit by plaintiff by notice of motion para 4 order dated 06.03.1991.
Since the defaulters were common (defendant no. 1 and 2) five suits
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were heard together. The Hon'ble Bombay High Court directed the
defendant No. 2 to pay Rs. 3,36,94,717.71 on or before 29.04.1991.
In pursuance of this order defendant No. 2 deposited the said amount
in the court. Defendant No. 1 acknowledged the claim of plaintiff. All
the Notice of Motion Nos. 2600/1990 in Suit No. 3009/1990, Notice
of Motion No. 48/1990 in Suit No. 3942/1990, Notice of Motion No.
2545/1990 in Suit No. 2946/1990, Notice of Motion No. 349/1991 in
Suit No. 29/1991 (the above suit) and Notice of Motion No. blank of
1991 in Suit (Lodg.) No. 687/1991(dated 05.03.1991) were disposed
off. Plaintiff and defendant No. 1 signed the minutes of order.
According to it the amount was deposited on 29.04.1991 by defendant
No. 2, was to be distributed prorata basis between the plaintiffs. As
the amount was insufficient towards the claim of plaintiff, defendant
No. 2 agreed to deposit one million US dollar. Above minutes were
taken on record and marked as Ex. 'X'. In compliance of order dated
02.05.1991 defendant No. 2 deposited Rs. 36,32,678/. Defendant No.
1 admitted the claim of plaintiff of Rs. 413,694.69 USD. This amount
is invested with Prothonotary Sr. Master of the Hon'ble High Court and
plaintiff wants the suit to be decreed on the basis of admission of
defendant No. 1 as recorded in the minutes and also claim the return of
the said amount along with interest accrued thereon.
3. Heard Ld. Counsel Smruti Jha for plaintiff. Perused the
material on record.
4. That by minutes of order dated 06.03.1991 of Hon'ble High
Court the defendant Burns Standard company Ltd. was directed to
deposit 1.8 million USD with the Prothonotary Sr. Master. Thereafter
Burns Standard company Ltd. was to stand discharged of their
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liability in respect of the their amount payable to defendant No.1.
It was also observed that they would not claim or receive back the
deposited amount. Thereafter by minutes of office order it was
observed that Burns Standard had deposited the amount on
29.04.1991 and are discharged of their liability to plaintiff to the extent
of amount deposited. Further, Burns Standard company Ltd. undertook
to deposit one million USD on 31.05.1991. There were 5 plaintiffs in
the case. It was also observed that the claim of the plaintiffs from
Burns Standard company Ltd. was not sufficient even to cover the
principal claim of the plaintiff/party.
5. Earlier plaintiff had filed Notice of Motion No. 2569/2016,
which was rejected by this court on 16.03.2018 and by directing
the plaintiff to file certified copy of minutes of order dated
06.03.1991 and 02.05.1991. While rejecting the said Notice of Motion
No. 2569/2016 my Ld. predecessor had observed that the
defendant No. 1 had deposited 1.8 million USD and on deposit of said
amount defendant No. 2 was discharged from liabilities towards
defendant No. 1. The claim of plaintiff was acknowledged and part
amount was paid to plaintiff's counsel on their behalf. The Notice of
Motion No. 2569/2016 was rejected as certified copies of minutes of
orders were not filed.
6. In this notice of motion the amount claimed in refund is the
amount which was deposited by the defendant No. 2 after admitting
their claim to defendant No. 1. I have perused the order in Notice of
Motion No. 2569/2016 and the grounds for its rejection. I have
heard Ld. Counsel for plaintiff on this point. According to them after
this notice of motion was rejected on 06.03.2018 they filed application
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on 16.03.2018 with Hon’ble High Court for grant of certified copies of
minutes of order dated 06.03.1991 and 02.05.1991. According to the
copy of status of the application for certified copies shows that the
order dated 06.03.1991 is not found and memorandum of order dated
02.05.1991 is in badly torned condition. Thus, as per the plaintiff it
cannot be given to them. Hence, the plaintiff is not in the place
to furnish the certified copies as directed earlier alongwith this
notice of motion.
7. This matter was earlier filed before the High Court. The
record and proceeding were received by this court when the
matter was transferred on the ground of pecuniary jurisdiction. The
copies received alongwith R & P are the photocopies which bears the
signature of concerned clerk of High Court. The copies of order
dated 06.03.1991 and minutes of order dated 02.05.1991 which
are relevant in deciding the motion are also part of the R & P. But as
stated they are photocopies. I have perused the said photocopies.
They are received from Hon’ble High Court. There appears no reason
to disbelieve them and they can be relied upon.
8. According to it the minutes of order dated 06.03.1991
Hon'ble High Court directed the Burns Standard company Ltd.
(defendant no. 2) to pay Rs. 3,36,94,717.71 on or before 29.04.1991.
In pursuance of this order defendant No. 2 deposited the said amount
in the court. Thereafter Burns Standard company Ltd. was to stand
discharged of their liability in respect of the their amount payable
to defendant No.1. It was also observed that they would not claim
or receive back the deposited amount. By minutes of order dated
02.05.1991 it was observed that Burns Standard company Ltd had
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deposited Rs. 3,36,94,717.71 in pursuance of minutes of order dated
06.03.1991 and had further undertaken to deposit US Dollars 1 million
on 31.05.1991. This deposited amount was distributed on prorata
basis and was agreed and accepted by all the five plaintiffs. The
admitted claim of plaintiff was of US Dollars 413,694.69.
9. The amount claimed by the plaintiff is the admitted amount
as per the minutes of order. This amount was deposited before the
Prothonotary and Senior master of Hon’ble High Court and out of it
Rs. 10 Lacs was transferred to this court alongwith the matter. As
per the contention of plaintiff they had not withdrawn it and pending
since then. In the opinion of the court since the amount is admitted by
the defendant, plaintiff can be allowed to withdraw the amount along
with the interest accrued thereon in proportion according to their
shares alongwith the interest accrued thereon. But considering the
prayer clause of the defendant the suit cannot be decreed on the basis
of admission as prayed.
10. During the course of hearing it was submitted that earlier the
amount was distributed on prorata basis. In this regard plaintiff had
filed on record the Consent Terms dated 02.04.2013 which were
signed between all the parties in dispute before the Hon’ble High Court
out of which plaintiff is one of the party. According to this Consent
Terms the share of the plaintiff was agreed to 18.98 %. This is being
considered. Accordingly, plaintiff shall be entitled to get share of
18.98% from the principal amount of Rs. 10 Lacs and also interest
accrued thereon in proportion. Further, it was also submitted that the
amount which came in the share of the plaintiff was given to the
advocates firm who inturn had credited it to the plaintiff. Ld. Counsel
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for the plaintiff filed pursis and undertaking and further submitted that
the amount be given to them as they have received instructions from
the Client. Further, they undertook to remit the amount to plaintiff after
it is received by them. Plaintiff in this case is a foreign company and
earlier amount was handed over to plaintiff's firm. Hence, considering
the pursis and undertaking the prayer is granted. Hence the notice of
motion is partly allowed.
: ORDER :
1. Notice of Motion No.1500 of 2018 is partly allowed.
2. Plaintiff be given their share in Rs. 10 Lacs along with interest
accrued thereon in the proportion of their share of 18.98%.
3. Plaintiff is further directed to file an undertaking to refund
the amount as and when directed.
4. Amount be given to plaintiff's advocate firm who would
thereon remit it to the plaintiff company.
Anand.L.Yawalkar
Judge,
City Civil & Sessions Court,
Date: 03.09.2018 Gr. Mumbai
Dictated on : 03.09.2018
Transcribed on : 03.09.2018
Signed on : 03.09.2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
On 04.09.2018 at 5.40 p.m.
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UPLOAD DATE AND TIME Mrs. P.R.Vengurlekar
NAME OF STENOGRAPHER
Name of the Judge
(With Court Room No.)
H.H.J. Anand.L.Yawalkar
C.R.No.31
Date of Pronouncement of
JUDGMENT/ORDER
03.09.2018
JUDGMENT/ORDER signed by P.O. on 03.09.2018
JUDGMENT/ORDER uploaded on 04.09.2018
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