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OJCA/121/2011 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION No. 121 of 2011
In
O.J.APPEAL
No. 21 of 2011
In
CIVIL SUITS No. 7 of 1993
=========================================================
M/S
MAHALAXMI BUILDINGS SINCE DISSOLVED THRO.BHOLABHAI V PAT & 2 -
Applicant(s)
Versus
VIJAYKARAN
SUBHKARAN DUGAR & 4 - Respondent(s)
=========================================================
Appearance
:
MR
MB GANDHI for
Applicant(s) : 1 - 3.MR CHINMAY M GANDHI for Applicant(s) : 1 -
3.
None for Respondent(s) : 1 -
5.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MS.JUSTICE B.M.TRIVEDI
Date
: 28/02/2011
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE JAYANT PATEL)
1. The
present application is for interim relief against the execution,
operation and implementation of the impugned order passed by the
learned Company Judge dated 27.1.2011 in Civil Suit No. 7/1993 with
other connected matters.
2. We
have heard Mr. M.B. Gandhi learned advocate appearing for the
applicant-appellant and Mr. Yadav learned advocate appearing for the
Official Liquidator.
3. Mr.
Gandhi learned counsel appearing for the applicant-appellant, mainly
pressed the interim relief against the direction issued by the
learned Company Judge to enforce the recovery of Rs. 46 lacs from the
partners of M/s. Mahalaxmi Builders.
4. It
appears that earlier an undertaking was already given and based on
the said undertaking, the learned Company Judge has directed for
recovery of the aforesaid amount. Once an undertaking is given and if
the matter is considered on the principle of equity, then also, the
applicant-appellant would not be entitled for the interim injunction
against the operation of the said direction, in any case, without
deposit of the amount as was already undertaken.
5. Apart
from the above, the direction is in the nature of monetary liability
and cannot be termed as irreparable injury, and normally, in a case
where the appellate powers are to be exercised unless very very
extra-ordinary circumstances are demonstrated before this Court, even
if the matter is to be considered for grant of stay, the amount is
required to be deposited.
6. Hence,
there shall be ad interim relief against the execution and
implementation of the directions issued by the learned Company Judge
in the impugned order to recover the amount of Rs. 46 lacs from the
partners of M/s. Mahalaxmi Builders – applicant herein, on
condition that the amount of Rs. 46 lacs is deposited by the
applicant-appellant with this Court within a period of four weeks
from today.
7. It
is also observed that if there is failure to comply with the
aforesaid direction, the aforesaid ad interim relief granted shall
automatically stands vacated and the consequences in law would
follow.
8. The
other reliefs as prayed for by the applicant-appellant, for disposal
of the property etc., are even otherwise also observed by the learned
Company Judge in the impugned order, but the insistence on the part
of the applicant is first to resort to the implementation of the said
direction and thereafter to insist for recovery of the amount of Rs.
46 lacs, considering the facts and circumstances and more
particularly, on the ground of alleged fraud having been found by the
learned Company Judge, does not deserve to be accepted. Hence,
refused.
9. The
application is disposed of accordingly.
(JAYANT
PATEL, J.)
(Ms.
B.M. TRIVEDI, J.)
mandora/
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