M/S Shamvik Glasstech Pvt. Ltd. Thr. Its Genaral Manager v. Shashikiran Engineering Works Kalpataru Industrial Estate Dhokali

Ajay IN IN THE THE HIGH HIGH COURT COURT OF OF JUDICATURE JUDICATURE AT AT BOMBAY BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3456 OF 2024 M/s. Shamvik Glasstech Pvt. Ltd.

Through its General Manager .. Petitioner

Versus

Shashikiran Engineering Works, Kalpataru Industrial Estate Dhokali.

.. Respondent ....................

 Mr. Dilip Bodake a/w. Mr. Sharad T. Bhosale, Advocates for Petitioner.

 Mr. Chandrakant Yadav, Advocate for Respondent. ...................

CORAM

: MILIND N. JADHAV, J.

DATE : MAY 10, 2024.

P.C.:

1.

Heard Mr. Bodake, learned Advocate for Petitioner and Mr. Yadav, learned Advocate for Respondent.

2.

Today, Writ Petition is placed for urgent orders in view of the impending action of an attachment warrant of the Petitioner's property i.e. office in execution proceedings. The impugned order in the present Writ Petition rejected the Application moved by the Writ Petitioner - Judgment Debtor seeking to set aside the order of issuance of warrant of attachment dated 20.04.2023. After hearing the parties, learned Executing Court has returned cogent reasons and after going through them as appearing in paragraph No.8 onwards, I have expressed my mind to Mr. Bodake that I am not inclined to interfere

with the said order.

3.

In the course of his submissions, Mr. Bodake has first shown me the decree passed by the Micro and Small Enterprises Facilitation Council which is appended at page No.29 of the Writ Petition which is infact the Statutory Award passed by the Council. The operative part of the Award requires the Writ Petitioner to pay an amount of Rs.12,27,382/- being the principal amount alongwith interest at the statutory rate prescribed under Section 16A of the MSMED Act, 2006 and future interest as stated therein.

4.

The irony is that the decree is passed on 21.03.2018 and direction was given to pay the aforesaid amount within a period of one month thereafter. Statutory Appeal has not been filed till date. Writ Petitioner approached the Division Bench of this Court by filing Writ Petition No.3381 of 2020 to challenge the Award dated 21.03.2018. The challenge obviously failed in 2024 in view of jurisdiction. Writ Petitioner was directed by the Court to file the appropriate Appeal against the Award dated 21.03.2018 as available to the Writ Petitioner under Section 34 of the Arbitration and Conciliation Act by taking recourse to the provisions of the said Act to assail the impugned Award. That order passed by the Division Bench of this Court is on 13.02.2024, resultantly which allowed the Writ Petitioner to protract making payment under the Award. Since February, 2024 the Statutory

Appeal has also not been filed and the Court is moved urgently today to thwart the steps taken by the Decree Holder in execution proceedings. An attachment warrant is being executed in respect of recovery under the Award against an immovable property namely the office of the Writ Petitioner situated at Mulund. 5.

Mr. Yadav has painstakingly taken me through the facts and would submit that the decreetal amount to recover today stands at Rs.76,09,773.27 alongwith future interest as and when the said amount is paid. Writ Petitioner - Judgment Debtor does not have any order passed in Statutory Appeal and rightly so because if Writ Petitioner files the Statutory Appeal it will be required to deposit the mandatory amount of 75% of the Award amount which the Writ Petitioner has successfully attempted to thwart and evade until today after passing of the Award on 21.03.2018.

6.

In view of the above, I have expressed my mind to Mr. Bodake that I am not inclined to assist such a Petitioner. 7.

Mr. Bodake after taking instructions from the authorized representative of the Writ Petitioner available in Court would submit that the Writ Petitioner be allowed to show his bonafides and in that regard would submit that Writ Petitioner shall deposit an amount of Rs.6,00,000/- by issuing a cheque of Rs.6,00,000/- dated 11.05.2024 in the name of the Decree Holder namely Shashikiran Engineering

Works .

8.

Mr. Bodake would next submit that by 31.05.2024, Writ Petitioner shall pay an additional amount of Rs.6,00,000/- by Demand Draft in the name of Shashikiran Engineering Works to show his bonafides.

9.

The authorized Representative on behalf of Judgment Debtor is present in Court. It is made clear that Writ Petitioner - Judgment Debtor who shall issue the first cheque of Rs.6,00,000/- tomorrow in the name of the Decree Holder shall ensure that it is not dishonoured for any reason whatsoever and if any positive pay confirmation is required to be provided, it shall be so done by the Judgment Debtor without fail.

10.

In view of the above submissions made by Mr. Bodake, I have put his request to Mr. Yadav and since the proprietor of the Decree Holder is present in Court, Mr. Yadav has taken appropriate instructions from him to receive the above amounts. However, I am still not inclined to protect the Writ Petitioner - Judgment Debtor fully in view of the facts of the case which are narrated herein above, lest it will render the Award dated 21.03.2018 completely redundant. 11.

Mr. Yadav would submit that the matter be listed for hearing on 24.06.2024 in view of his unavailability immediately after reopening. Mr. Bodake agrees to the said listing.

12.

However, in view of the above order, I direct the Writ Petitioner to file the appropriate Statutory Appeal in the meanwhile and obtain appropriate orders therein. If the Writ Petitioner does not file the Statutory Appeal and obtain appropriate orders, then conduct of the Writ Petitioner will have viewed strictly by the Court and if such Appeal is not filed, then on the next adjourned date, Writ Petitioner is directed to bring a schedule of payment of the balance amount to be paid over to the Decree Holder. Such schedule shall be filed on Affidavit / undertaking and it shall be presented before the Court across the bar on 24.06.2024.

13.

In view of the above, in the meanwhile, no coercive steps shall be taken against the Writ Petitioner with respect to the warrant of attachment which is the subject matter of the present Writ Petition. 14.

At the request of Mr. Yadav, I am also inclined to extend the above protection from any precipitative steps to be taken under the warrant of attachment only upto the next adjourned date. 15.

Stand over to 24th June, 2024.

[ MILIND N. JADHAV, J. ] Ajay by AJAY TRAMBAK UGALMUGALE Date: 2024.05.10 21:03:29 +0530 AJAY TRAMBAK UGALMUGALE