Final Order 1

Order Details: Notice of Motion
Pdf Text: ..1.. Notice of Motion No.2056/2019
MHCC010057252019
IN THE BOMBAY CITY CIVIL COURT, GREATER MUMBAI AT
MAZGAON
NOTICE OF MOTION NO.2056 OF 2019
(CNR NO.MHCC01-005725-2019)
IN
EXECUTION APPLICATION NO.69 OF 2019
IN
SUMMARY SUIT NO.7265 OF 2004
(H.C. SUMMARY SUIT NO.2581 OF 2004)
Arcadia Shipping Limited, )...Plaintiff
VERSUS
HDFC Bank Limited, )...Defendant
Appearances :-
Learned Advocate Subra Karmakar for plaintiff/Decree holder.
Learned Advocate Rupesh Sohoni for defendant/Judgment debtor.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.84.
DATE : 20/03/2024.
ORDER
1 This notice of motion is taken out by plaintiff for
permission to withdraw the amount of Rs.15,77,614/-, deposited by
defendant as per the direction of Hon’ble High Court vide order dated
29/03/2019. The Summary Suit bearing No.5760 of 2006 is decreed in
favour of plaintiff, directing defendant to pay the amount claimed by
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..2.. Notice of Motion No.2056/2019
plaintiff of Rs.11,48,697.96/- with interest at the rate of 9% per annum.
Defendant HDFC Bank Limited preferred an Appeal before the Hon'ble
High Court and prayed for stay on execution. While granting stay, the
Hon’ble High Court vide order dated 29/03/2019, had directed
defendant to deposit the decretal amount in the Court i.e.
Rs.15,77,614/- which was deposited by defendant accordingly. It is
further contended that plaintiff was permitted to withdraw the said
amount and prayed for permission of withdrawal of the same.
2 Defendant resisted the contention by filing reply
contending that no permission was granted to the plaintiff to withdraw
the amount. It is contended that defendant has fairly deposited the
amount of decree as per the direction of Hon'ble High Court.
Challenging the judgment and decree passed in the Summary Suit
No.5760 of 2006, it is the contention of the defendant that it would be,
better to invest the amount in the Nationalised Bank and defendant has
every hope of success. Hence, prayed for rejection of notice of motion.
Plaintiff has submitted rejoinder to the reply filed by defendant.
3 Heard rival parties at length, perused the copy of Hon'ble
High Court. It reveals that the Hon'ble High Court pleased to stay the
operation and implementation of judgment by this Court in Summary
Suit No.5760 of 2006 on depositing the entire decretal amount. As per
the operative part of clause (iii) of Order, liberty was granted to the
plaintiff to prefer an application for withdrawal of amount and that it
will be decided on its own merit. Thus, it reveals that permission was
given to the plaintiff to apply to the Court for withdrawal of amount.
The report from PLA Section, shows that the amount deposited by the
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..3.. Notice of Motion No.2056/2019
defendant is invested in the Union Bank of India in Fixed Deposit as per
the direction of Hon’ble High Court. It is the contention of plaintiff that
he is waiting for the amount since long and the amount is lying in the
Court. However, learned advocate for defendant is having objection
contending that defendant Bank has strong defence and having of every
hope of success in appeal. In case of payment of amount to the plaintiff,
it would be very difficult to recover the amount from the plaintiff, in
case of its success.
4 As amount is already invested in fixed deposit by the
department, the interest of both the parties is protected; whosoever will
succeed in the Appeal will be able to get the entire amount with the
interest accrued. The payment of amount to plaintiff, at this stage is not
warranted. Hence, it will be just and proper that the amount should be
kept in fixed deposit, till decision of Appeal. Consequently, I found no
merit in the notice of motion, in the result, I proceed to pass the
following order :-
ORDER
1. Notice of Motion No.2056 of 2019 in Execution
Application No.69 of 2019, is hereby dismissed.
2. Notice of Motion is disposed of accordingly.
(Order dictated and pronounced in open Court)
sd/-
(Shaikh Akbar Shaikh Jafar)
Judge, City Civil Court, Mazgaon
Mumbai
Date: 20/03/2024. Court Room No.84
Dictated on : 20/03/2024.
Transcribed on : 21/03/2024.
Signed by HHJ on : 21/03/2024.
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..4.. Notice of Motion No.2056/2019
“Certified to be true and correct copy of the original signed order”.
22/03/2024
at about 5.45 p.m.
(Ms. Sonali S. Sawant)
Stenographer (Grade-III)
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge, Court
Room No.84, Mazgaon, Mumbai
Date of pronouncement of Order : 20/03/2024
Order signed by Hon'ble Judge on : 21/03/2024
Order uploaded on : 22/03/2024
at about 5.45 p.m.
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