DSL ENTERPRISES PVT. LTD. vs MAHARASHTRA STATE ELECTRICITY DISTRIBUTION CO.LTD

G. S. PATEL, J

1.The Chamber Summons is filed by the Maharashtra State Electricity Distribution Company Limited (""MSEDCL""), the unsuccessful respondent to an

arbitral award. These are the prayers in the Chamber Summons:

(a) That upon the Applicant depositing a sum of Rs.46,89,16,396/- this Hon'ble Court be pleased to declare that the arbitration award dated 18th

June 2004 stands fully satisfied and the Applicant stands discharged therefrom;

(b) That this Hon'ble Court be pleased to raise attachment of Applicant's bank account being Schedule as attached in the Warrant of attachment

dated February 22, 2018 vide warrant of attachment (Exhibit ""A"" hereto);

(c) That pending the hearing and final disposal of the Chamber Summons Applicant may be allowed to deposit an amount of Rs.46,89,16,396/-

through Demand Draft no 977411 dated 6th February 2018 (Bank of Maharashtra) in satisfaction of the award dated 18th June 2004 and attachment

of Applicant's Bank account being 0239256010710, Canara Bank, Tamarind Lane branch be raised;

2.The Chamber Summons was first moved on 24th February 2018. As I was unavailable that day, MSEDCL moved before AK Menon J. It cited

'grave urgency', and actually applied after court hours, saying that the attachment in execution of its bank accounts needed to be raised immediately.

Given the time when it was moved, Menon J directed it be placed before the regular Bench on 26th February 2018. On that day, 26th February 2018,

at the request of Mr Dada for the decree holder, DSL Enterprises Pvt Ltd (""DSL""), it was stood over by a day. On 27th February 2018, I passed an

ad- interim order. I will return to the details of this order presently, but in sum, since MSEDCL (a) deposited in Court (i) an amount of

Rs.46,89,16,396 admittedly due to DSL; and (ii) an amount of Rs.98,54,06,315 claimed by DSL; and (b) made a statement in regard to a potential

deduction of tax at source, I ordered the raising of the attachment of MSEDCL's bank accounts.

3.The parties then completed their filings, to the stage of a sur- rejoinder. I have now heard Mr Mody for MSEDCL andM r Dada for DSL at some

length. In my view, and for the reasons that follow, this entire application is not just untenable in law and unsupported by facts; it is purely dilatory,

certainly vexatious and has resulted in a quite unforgivable waste of judicial time.

4.An abbreviated statement of facts is thus. On 18th June 2004, MSEDCL suffered an award in the amount of Rs.179 crores in an arbitration claim

brought by DSL. The arbitral tribunal (Mr Justice VD Tulzapurkar, Mr Justice SC Pratap and Mr Justice ML Pendse) awarded interest at 10% per

annum from the date of the award until payment. MSEDCL was also held liable to pay costs. These were quantified at Rs.1 crore, a very significant

sum by any standards, and especially in 2004. There was no separate award of interest pendente lite.

5.MSEDCL filed a challenge Petition under Section 34 of the Arbitration Act. There were certain intervening events and proceedings, but these are

not of immediate relevance to the present considerations. That challenge Petition was ultimately dismissed by a learned single Judge of this Court

(Mrs RS Dalvi J) on 18th March 2009. She imposed costs of Rs.1,00,000/- on MSEDCL.

6.DSL moved in execution and proceeded to attach MSEDCL's bank accounts. The single Judge hearing Execution Applications (SCD harmadhikari

J) directed MSEDCL to furnish a bank guarantee in the amount of Rs.75 crores and raised attachment on MSEDCL's bank accounts subject to

fulfilment of that condition.

7.MSEDCL appealed under Section 37 of the Arbitration Act. On 2nd May 2009, a Division Bench( JN Patel J, as he then was, and Mrs Mridula

Bhatkar J) stayed the execution of the decree subject to two conditions; (i) that MSEDCL would deposit Rs.179 crores in Court before 29th June

2009; and (ii) that MSEDCL would furnish a bank guarantee for Rs.86 crores and would keep this alive until final disposal of the Appeal.

8.Both parties went to the Supreme Court against the 2nd May 2009 order. On 15th May 2009, the Supreme Court modified the High Court order. It

directed MSEDCL to deposit Rs.65 crores in this Court and granted DSL the liberty to withdraw this upon DSL furnishing a bank guarantee. It also

directed MSEDCL to furnish a bank guarantee for Rs.200 crores to the satisfaction of theP rothonotary and Senior Master of this Court. This bank

guarantee was to be kept alive during the pendency of the Appeal.

9.A good four years went by until, on 19th October 2013, another Division Bench of this Court (VMK anade and KR Shriram, JJ) dismissed

MSEDCL's Appeal under Section 37 of the Arbitration Act. The Division Bench also imposed costs on MSEDCL.

10.This was, therefore, the third order of costs against MSEDCL so far.

11.MSEDCL moved the Supreme Court in a Special Leave Petition against the order dismissing its Section 37 Appeal. On 28th November 2013, the

Supreme Court passed an interim order directing MSEDCL to furnish bank guarantee of Rs.100 crores to the satisfaction of theP rothonotary and

Senior Master; directing it to deposit Rs.100 crores in this Court; giving to DSL to withdraw this against a bank guarantee; and directing DSL to keep

alive its bank guarantee previously furnished to the High Court while withdrawing Rs.65 Crores.

12.Early this year, on 18th January 2018, the Supreme Court dismissed MSEDCL's SLP against the High Court Division Bench order dismissing

MSEDCL's Section 37 appeal. This dismissal was also accompanied by an order of costs. This is therefore the fourth order of costs against

MSEDCL.

13.This Chamber Summons was then filed sometime in February 2018. On 27th February 2018, I passed the order I referred to earlier. Paragraphs 1,

2, 3 and 4 of that order read:

1.Mr Mody has two Demand Drafts. Both Demand Drafts are inf avour of the Prothonotary and Senior Master. amount of Rs.46,89,16,396/-. This is

admittedly due by the Respondent to the Petitioner. This Draft will be deposited with the Prothonotary and Senior Master in the course of morning and

will be deposited immediately in the course of the day. The Prothonotary and Senior Master will issue an instrument in favour of the Petitioner in this

exact amount by the end of day tomorrow, 28th February 2018. Alternatively, payment may be made by the Prothonotary and Senior Master by

RTGS to an account nominated by the Decree Holder.

2.The second Demand Draft is in the amount of Rs.98,54,06,315/-. This will also be encashed by the Prothonotary and Senior Master and will be

invested initially for a period of 15 days. Further renewal will be subject to the orders of the Court.

3.Mr Mody states that an amount of Rs.15,12,50,893.09/- has been deducted as tax at source. Mr Dada submits that no TDS can be deducted on an

award for damages. For the present I will record the undertaking by the Judgment Debtor to pay the amount in to the revenue as TDS within time.

The amount of TDS will be retained by the Judgment Debtor on the understanding that specific undertaking that the question of whether or not tax is

deductible at source will also be decided at the next hearing. In any case the Judgment Debtor has one month or 30 days to pay the amount to

revenue. The matter will be listed before then. The undertaking is accepted as an undertaking to the Court.

4.In view of the foregoing, all bank accounts of the Judgment Debtor, The Maharashtra State Electricity Distribution Company Limited, are released

from attachment or orders of freezing with immediate effect. An authenticated copy of this order will be communicated to the Managers of the

respective branches. They are directed to act on production of an authenticated copy of this order.

14.One further fact must be noted. On 3rd June 2009, DSL recorded partial satisfaction of the Arbitral Award or decree and it did so by showing that

it had appropriated the amounts withdrawn (from the MSEDCL deposits made in Court) first towards interest and costs. It is actually this point that is

at the heart of Mr Mody's case today on behalf of MSEDCL. His submission is that when the Division Bench ( JN Patel &M rs Bhatkar JJ) directed

a deposit of the principal amount and separately interest, this necessarily meant that the DSL was first required to make appropriations towards

principal and then to interest, and could not do it the other way around. Mr Mody draws my attention to paragraph 9 of the order dated 2nd May 2009:

9.This contention is strongly opposed by the respondents on the ground that the respondents have been deprived of the amount for the last ten years

which has led them to approach BIFR to get itself declared as a sick industrial unit as they were not paid their dues by the appellants under the

contract which was the subject matter of arbitration proceedings till passing of the award in their favour and, therefore, the Court should direct the

appellants to deposit the amount along with interest for which the order of attachment has already been passed by the Prothonotary and the award has

been confirmed by the learned Single Judge. We are inclined to grant stay in favour of the appellants on the condition that the appellants shall deposit

the principal amount which is in the sum of Rs.179 crores in this Court on or before 29th June 2009 and furnish a bank guarantee for the balance

amount i.e. 86 crores and the bank guarantee may be kept alive till the appeal is heard finally and disposed of. Failure to deposit the amount and

furnish the bank guarantee as directed would result in vacation of the stay order. On the amount being so deposited by the appellants, the Prothonotary

& Sr Master would invest it in any nationalised bank as per the usual directions of this Court in respect of such investment of monies deposited by the

parties in a term deposit initially for a period of one year. The appeal be listed before the Second Court on 29th June 2009 for hearing.

15.On the face of it the submission is untenable in law. How to appropriate an amount paid under or in partial satisfaction of a decree is always the

sole prerogative of the decree holder. It is subject to only two exceptions: (i) where a court otherwise directs (either in the decree or in execution), or

(ii) where the parties agree on the mode and manner of appropriation. Barring a judicial order directing a particular form, manner or mode of

appropriation, or an agreement inter-partes, it is always for the decree holder to decide how he wishes to appropriate a payment made towards the

decretal debt. As a general rule, the first thing almost always sought to be satisfied is the decree for interest and costs. The reason is plain. A decree

that awards interest on a principal amount necessarily implies that interest keeps running on the base principal amount until the entirety of the decree is

satisfied. Unless the decree so provides, there is no possibility of the judgment creditor on his own capitalising interest or compounding it, for that

would amount to recovering interest on interest. It is for this reason that a prudent judgment creditor will always first apply any funds received

towards interest. If those are left unsatisfied or without appropriation they will remain in that amount and will not earn further interest. There is

therefore a logical reason why appropriations are first made towards interest and costs. This is a well settled position in law.1

16.Second, the submission that once a deposit is made as a condition for stay on execution, the decree is automatically satisfied and interest stops

running is prima facie incorrect. An order of deposit as a conditional stay is to provide security to the judgment creditor. It is only when the amount

deposited is allowed to be withdrawn and it is actually applied towards satisfaction of the debt that there is a reduction of the decretal claim to the

extent of that appropriation. If the amount of the appropriation is wholly consumed by being applied towards interest and costs, interest on the principal

amount will continue to run. The situation will be slightly different, if after appropriating towards interest and costs there is an application towards a

part of the principal claim. Then interest will run on the reduced principal debt.

17.In PSL Ramanathan Chettiar & Ors v ORMPRM Ramanathan Chettiar,3 the Supreme Court enunciated the legal principle thus:

Industrial Credit & Development Syndicate v Smithaben H Patel & Ors, (1999) 3 SCC 80 (paras 6, 7 and 14); V Kala Bharathi & Ors v Oriental

Insurance Company Ltd, (2014) 5 SCC 577 (paras19, 20, 26); Jet Airways (India) Ltd v Sahara Airlines Ltd &O rs, (2011) 113 (3) BLR 1725 (paras

49-51).

PSL Ramanathan Chettiar & Ors v ORMPRMR amanathan Chettiar, AIR 1968 SC 1047 (paras 12, 13,15); Jet Airways, supra, (paras 44, 45,46);

Sino Ocean Ltd v Salvi Chemical Industries ltd, 2017 SCC Online Bom 9401 (paras 23, 24), per KR Shriram J.

12.On principle, it appears to us that the facts of a judgment-debtor's depositing a sum in court to purchase peace by way of stay of execution of the

decree on terms that the decree-holder can draw it out on furnishing security, does not pass title to the money to the decree-holder. He can if he likes

take the money out in terms of the order; but so long as he does not do it, there is nothing to prevent the judgment debtor from taking it out by

furnishing other security, say, of immovable property, if the court allows him to do so and on his losing the appeal putting the decretal amount in court

in terms of Order 21 Rule 1 CPC in satisfaction of the decree.

13.The real effect of deposit of money in court as was done in this case is to put the money beyond the reach of the parties pending the disposal of the

appeal. The decree-holder could only take it out on furnishing security which means that the payment was not in satisfaction of the decree and the

security could be proceeded against by the judgment-debtor in case of his success in the appeal. Pending the determination of the same, it was beyond

the reach of the judgment-debtor.

18.The pronouncement of law by a three-Judge bench of the Supreme Court in V Kala Bharathi & Ors v Oriental Insurance Company Ltd4 is the

clearest possible enunciation of the principle applicable.

The short question to be answered in this appeal is whether the amount deposited by the judgment-debtor in a decree is to be adjusted first

towards interest or towards principal decretal amount.

19.In Mathunni Mathai [Mathunni Mathai v. Hindustan Organic Chemicals Ltd., (1995) 4 SCC 26] , it was held that: (SCC p. 29, para 3) ""3. The right

of the decree-holder to appropriate the amount deposited by the judgment-debtor, either in court or paid outside, towards interest and other expenses is

founded both on fairness and necessity.

It was observed that: (SCC pp. 29-30, para 3) ""3. ... The courts and the law have not looked uponf avourably where the judgment-debtor does not pay

or deposit the decretal amount within the time granted as one cannot be permitted to take advantage of his own default. Therefore, the normal rule

that is followed is to allow the deposit or payment, if it is in part to be adjusted towards the interest due, etc.

20.In Industrial Credit and Development Syndicate Ltd. [(1999) 3 SCC 80] , it has been held that in cases where the trial court has not prescribed any

mode for payment of decretal amount, except fixing the instalments, in the absence of agreement between the parties, regarding the mode of payment

of decretal amount, the general rule of appropriation of payments towards decretal amount is that the said amount is to be adjusted firstly strictly in

accordance with the directions contained in the decree and in the absence of such direction, it is to be adjusted firstly towards interest and costs and

thereafter towards principal amount. This is, of course, subject to the exception that the parties can agree to the adjustment of payment in any other

manner despite the decree. In that case, the Supreme Court had an occasion to consider the method of appropriation and after noticing various

decisions of the English courts and the Privy Council, followed the judgment in Meghraj case [(1969) 2 SCC 274] .

26.In view of above and more particularly keeping in view the ratio of the Constitution Bench judgment in Gurpreet Singh [(2006) 8 SCC 457] , where

considering an identical question in respect of Order 21 Rule 1 CPC, it was held that if the amount deposited by the judgment- debtor falls short of the

decretal amount, the decree- holder is entitled to apply the rule of appropriation by appropriating the amount first towards interest, then towards costs

and subsequently towards principal amount due under the decree; we are of the opinion that the appellants herein are entitled to the amount awarded

by the executing court, as the amounts deposited by the judgment-debtor fell short of the decretal amount. After such appropriation, the decree- holder

is entitled to interest only to the extent of unpaid principal amount. Hence, interest be calculated on the unpaid principal amount.

(Emphasis added)

-- If there is the slightest doubt about this principle, and I do not for a moment believe there is, it is buried by the emphatic delineation of the law on

the subject -- the precise question of appropriation absent a judicial direction or an agreement inter partes by the Supreme Court's decision in Industrial

Credit & Development Syndicate v Smithaben H Patel & Ors,5 referenced, as noted, in V Kala Bharathi. This is what the Supreme Court said in

Industrial Credit & Development Syndicate:

6.In Venkatadri Appa Row v. Parthasarathi Appa Row [(1920-21) 48 IA 150 : AIR 1922 PC 233] the Judicial Committee of the Privy Council had

held that upon taking an account of principal and interest due, the ordinary rule with regard to payments by the debtor unappropriated either to

principal or interest is that they are first to be applied to the discharge of the interest. This Court in Meghraj v. Bayabai [(1969) 2 SCC 274 : (1970) 1

SCR 523] reiterated the position of law and held that the normal rule was that in the case of a debt due with interest, any payment made by the debtor

was in the first instance to be applied towards satisfaction of interest and thereafter to the principal. It was for the debtor to plead and prove the

agreement, if any, that the amounts paid or deposited in the Court by him were accepted by the creditor/decree-holder subject to the condition imposed

by him. In that case the judgment- debtor had urged that when the amount was finally submitted by the mortgagee they were aware of the fact that

certain amounts had been paid conditionally and the withdrawal of the amounts deposited in the court amounted to acceptance of the conditions

subject to which the amounts were deposited. In the facts and circumstances of that case this Court observed thus: (SCC p. 277, para 7) 5 (1999) 3

SCC 80.

But the account submitted by the mortgagees shows clearly that they had given credit for the amounts deposited towards the interest and costs in the

first instance and the balance only towards the principal. The account submitted by the mortgagees clearly negatives the plea of the mortgagors.

The same is the position in the instant case as earlier noticed and evident from the statement of accounts (Annexure 'C') admittedly furnished to the

judgment-debtor immediately after payment of the amounts consequent upon the passing of the decree. To the same effect is the letter (Annexure 'E')

and statement of account accompanying it.

Order 21 Rule 1 of CPC provides the mode of paying money under the decree. Payments made to the decree- holder out of court are required to be

certified for adjustment in terms of Rule 2 of Order 21CPC. Where any money payable under a decree is paid out of court or is otherwise adjusted in

whole or in part to the satisfaction of the decree, the decree-holder is to certify such payment and adjustment towards the court whose duty is to

execute the decree. The judgment-debtor or any person who has become surety for the judgment-debtor has also a right to inform the court of such

payment or adjustment applying to the court for the issuance of a notice to the decree- holder to show cause as to why such payment or adjustment be

not recorded as certified and if, after service of such notice, the decree-holder fails to show cause why the payment or adjustment should not be

recorded as certified, the court is obliged to record the same accordingly. No payment or adjustment can be recorded at the instance of the judgment-

debtor unless it is made in the manner provided under Rule 1 or the payment or adjustment is proved by documentary evidence or the payment or

adjustment is admitted by, or on behalf of the decree-holder in a reply to the notice given to him under sub-rule (2) of Rule 1 Order 21 of CPC. In the

absence of payment having been made in accordance with the mode prescribed or the satisfaction recorded under Rule 2, the judgment-debtor cannot

claim the benefit of adjustment in the manner insisted upon by him.

8.In order to overcome the legal obstacles in their way, the judgment-debtors have sought refuge under the cloak of alleged protection provided by

Section 60 of the Indian Contract Act, 1872. It is further submitted that in view of the later judgments of this Court inM athunni Mathai v. Hindustan

Organic Chemicals Ltd. [(1995) 4 SCC 26] and inP rem Nath Kapur v. National Fertilizers Corpn. of India Ltd. [(1996) 2 SCC 71] the law laid down

in Meghraj case [(1969) 2 SCC 274 : (1970) 1 SCR 523] has to be held as no good law.

9.We are of the opinion that such a plea is far- fetched and begged only for the purpose of putting an imaginary defence to the claim of the appellant-

decree- holder. Section 59 of the Indian Contract Act deals with the application of payment where debt to be discharged is indicated and Section 60

where debt to be discharged is not indicated. The aforesaid Sections 59 and 60 are reproduced below:

Application of payment where debt to be discharged is indicated.--Where a debtor, owing several distinct debts to one person, makes a payment

to him, either with express intimation, or under circumstances implying, that the payment is to be applied to the discharge of some particular debt, the

payment, if accepted, must be applied accordingly.

60.Application of payment where debt to be discharged is not indicated.--Where the debtor has omitted to intimate, and there are no other

circumstances indicating to which debt the payment is to be applied, the creditor may apply it at his discretion to any lawful debt actually due and

payable to him from the debtor, whether its recovery is or is not barred by the law in force for the time being as to the limitation of suits.

A perusal of Section 59 would clearly indicate that it refers to several distinct debts payable by a person and not to the various heads of one debt. The

principal and interest due on a single debt or decree passed on such debt carrying subsequent interest cannot be held to be several distinct debts. A

Full Bench of the Lahore High Court inJ ia Ram v. Sulakhan Mal [AIR 1941 Lah 386 : ILR 1941 Lah 740] dealt with the scope of Section 59 to

Section 61 of the Indian Contract Act and held:

Sections 59 to 61, Contract Act, embody the general rules as to appropriation of payments in cases where a debtor owes several distinct debts to one

person and voluntarily makes payment to him. They do not deal with cases in which principal and interest are due on a single debt, or where a decree

has been passed on such a debt, carrying interest on the sum adjudged to be due on the decree.

These sections are based upon the rule of English Law, well settled since Clayton case [(1816) 1 Mer 608 : 14 RR 166] that where a debtor, owing

several distinct debts to one person, makes a payment to him intimating that the payment is to be applied in discharge of particular debt, the creditor, if

he accepts the payment, must apply it accordingly. If, however, the debtor has omitted to intimate and there are no circumstances indicating to which

debt the payment is to be applied the creditor may, at his discretion, apply it to any debt actually due and payable to him by the debtor at the time. In

case neither party makes the appropriation, the payment is to be applied in discharge of the debts in order of time; and if the debts are of equal

standing the payment is made in the discharge of each of them proportionately. It will be seen that these rules have no application to a case in which

only one debt is due and at the time of payment, besides the principal sum secured, interest has also accrued due. In such cases, the rule of English

Law, laid down as far back as 1702 in Chase v. Box [(1702) 2 Freeman 261 : 22 ER 1197] is that 'if a man is indebted to another for principal and

interest and payeth the money generally, it shall be applied in the first place to sink the interest before any part of the principal should be sunk'.

In Parr's Banking Co. Ltd. v. Yates [(1898) 2 QB 460 : 67 LJQB 851 : 79 LT 821 : 47 WR 42 : (1895-99) All ER Rep Ext 1592] Lord Rigby, J.

described it as 'the old and well-settled rule' that where both 'principal and interest are due the sums paid on account must be applied first to interest.

That rule, where it is applicable is only common justice. To apply the sums paid to principal where interest has accrued upon the debt, and is not paid,

would be depriving the creditor of the benefit to which he is entitled under his contract, and would be most unreasonable as against him'.

Fisher in his standard work on the Law of Mortgages (Edn. 7), p. 620, while dealing with the question of appropriation of payments towards a

mortgage debt, states the law as follows:

'Where the debtor claims to be discharged by reason of payments which were not specially made in respect either of the principal or the interest of

the mortgage, the rule is that a general payment shall be applied in the first place to sink the interest, before any part of the principal is discharged.'

The judgment of the Lahore High Court is based upon sound principle and has kept in mind the intention of the legislature in enacting Sections 59 to 61

of the Act. We do not agree with the learned counsel for the respondents that Section 60 of the Contract Act has to be read independently excluding

the provisions of Section 59. Accepting such an argument would amount to doing violence to the language employed in the section and the purpose

sought to be achieved by it. Besides, it would also be contradictory in terms. Section 60, if applied independently, cannot be held to be conferring any

right upon the judgment-debtor as it confers a discretion in favour of the creditor to apply such deposited amount to any lawful debt actually due and

payable by the debtor when such debtor omits to intimate the discharge of the debt in the manner envisaged under Section 59. We are of the opinion

that Sections 59 and 60, Contract Act, would be applicable only in pre-decretal stage and not thereafter. Post-decretal payments have to be made

either in terms of the decree or in accordance with the agreement arrived at between the parties though on the general principles as mentioned in

Sections 59 and 60 of the Contract Act. As and when such an agreement either express or implied is relied upon, the burden of proving it would

always be upon its propounder. The judgment-debtors, in the instant case, are proved to have failed in discharging such an onus. There does not

appear to be any obligation on the decree-holder to intimate the judgment-debtor that the amount paid to him had not been accepted in the manner

specified by him in the letter accompanying the payment. Insisting upon such a course would result in unnecessary burden upon the financial

institutions and conferment of unwanted unilateral discretion in favour of the defaulters. Acceptance of the plea that the amount paid first should be

adjusted in the principal amount would not only be against the provision of law but against the public policy as well. To provide security, continuity and

certainty in business transaction, the legislature has been making specific provisions in that regard which may be found in various provisions of the

Negotiable Instruments Act, 1881 or Order 37 Code of Civil Procedure and other statutory provisions.

14.In view of what has been noticed hereinabove, we hold that the general rule of appropriation of payments towards a decretal amount is that such

an amount is to be adjusted firstly, strictly in accordance with the directions contained in the decree and in the absence of such direction, adjustments

be made firstly in payment of interest and costs and thereafter in payment of the principal amount. Such a principle is, however, subject to one

exception, i.e., that the parties may agree to the adjustment of the payment in any other manner despite the decree. As and when such an agreement

is pleaded, the onus of proving is always upon the person pleading the agreement contrary to the general rule or the terms of the decree schedule. The

provisions of Sections 59 to 61 of the Contract Act are applicable in cases where a debtor owes several distinct debts to one person and do not deal

with cases in which the principal and interest are due on a single debt.

20.Mr Mody relies on the decision in Himachal Pradesh Housing and Urban Development Authority &A nr v Ranjit Singh Rana6 and Union of India

& Anr v MP Trading & Investment RAC Corporation Ltd.7 I do not believe either of these cases assists MSEDCL. IRna njit Singh Rana the entire

amount due under the award was deposited in the Himachal Pradesh High Court even before the challenge petition was dismissed, i.e. before the

award became enforceable and could be put into execution. The deposit was specifically towards satisfaction of the award (paragraph 15). In the

present case, the deposits were ad hoc amounts. The amount of Rs.65 crores deposited by MSEDCL pursuant to the 15th May 2009 Supreme Court

order was less even than the interest by then due, 6 (2012) 4 SCC 505. decretal debt or the amount of the award but were pre-conditions to stay of

execution; there was no such issue in Ranjit Singh Rana. There was, therefore, no 'payment of the decretal debt' or 'payment under the decree' within

the meaning of the formulation in Ranjit Singh Rana. Indeed, this is why Ranjit Singh Rana does not reference the three- Judge bench decision in

Ramanathan Chettiar.

21.MP Trading is on similar lines, for here, too, the entire amount of the award was deposited before the Section 34 petition was dismissed, i.e. before

the award could be put into execution. The direction for deposit was by the Section 34 court, and was not ordered as a pre-condition to stay of

execution. it could not have been; because, before the Section 34 court, so long as that petition was pending, there was nothing to execute, and

therefore no execution of which any stay could be sought. In any case, MP Trading is said to have been decided on its facts (paragraph 5), and it

therefore has no discussion about 'appropriation' of any amount towards interest or principal; again, there could not have been, because the award

holder made no withdrawal at all.

22.The argument that MSEDCL advances today is, therefore, contrary to nearly four centuries of settled law. Viewed from this perspective, the

submission that because of the Division Bench order, DSL ought to have first appropriated such amounts as it was allowed to withdraw (against a

bank guarantee) towards satisfaction of the principal is a submission that is entirely without legal foundation. This in itself is sufficient to warrant a

dismissal of the Chamber Summons.

23.The order of 2nd May 2009 ( JN Patel and Mrs Mridula Bhatkar JJ), set out above, in terms says that the matter was being considered only on the

question of stay (of execution and of the award). Here is the relevant passage again:

We are inclined to grant stay in favour of the appellants on the condition that the appellants shall deposit the principal amount which is in the sum of

Rs.179 crores in this Court on or before 29th June 2009 and furnish a bank guarantee for the balance amount i.e. 86 crores and the bank guarantee

may be kept alive till the appeal is heard finally and disposed of.

It simply cannot be argued that the deposit was required for payment of the decretal debt. It was clearly only as a pre-condition to stay of execution, a

very different thing. To say otherwise is to deliberately twist the words of the Appeal Court. Second, the mere mention of the words 'principal' and

'interest' do not and cannot amount to a direction to pay the amount. They are used only to compute or reckon the amount of the deposit required in

order to grant stay. Third, this order was modified by the Supreme Court's order of 15th May 2009. In that order, the Supreme Court granted leave (in

DSL's Special Leave Petition). It modified the order of deposit, again as a pre-condition to a stay of execution. Paragraph 5 of the 15th May 2009

order says:

Having regard to the facts and circumstances, we are of the view that the terms subject to which a stay has been granted require modification.

In paragraph 6, the modified terms are set out; and these make no reference to the principal and interest at all. MSEDCL's deposit was fixed at Rs.65

crores. It had to give an unconditional bank guarantee of Rs.200 crores. Stay was granted on that basis. It is, therefore, futile to refer to the High

Court Division Bench order in support of a case for appropriation, when that order was entirely modified and substituted, with no mention of either

principal or interest, by the Supreme Court in appeal.

24.At no point, therefore, did any court require any deposit in payment of the decretal debt or direct appropriation of withdrawals in any particular

mode or manner. There was also, clearly, no agreement between the parties about the mode of appropriation. Neither of the two exceptions to the

general rule are met.

25.Therefore, in regard to the principal argument that MSEDCL's deposits pursuant orders of the Division Bench and the Supreme Court were either

clearly directed towards payment of the principal or must be deemed to have so been, it is sufficient to note that in every one of those orders the only

question before the Court was in regard to a stay of execution of the decree. The fact that one or the other Court specified deposit of some amount in

cash and some amount as a bank guarantee makes no difference. This is only a matter of convenience and to lessen the execution burden on the

judgment creditor. None of these orders, I note, prescribed any mode of satisfaction of the decree. None of these orders said that the amount or

amounts withdrawn by DSL were to be appropriated in any particular fashion. Consequently, the general rule giving primacy to the decree holder to

decide how best to effect that appropriation was never even touched by any of the orders of the Division Bench or of the Supreme Court.

26.Mr Dada makes a further point. He says it is on account of the non-recovery of this debt and MSEDCL's frivolous objections to DSL's claim that

DSL was run into the ground. The amounts in question, he submits, are not trivial. They materially and directly affected DSL's cash flow. It had to

seek BIFR protection. One of the consequences was that it had difficulty for a great period of time in even effecting the necessarily withdrawals, thus

pushing into a further downward spiral. The submission undermines what little remains of MSEDCL's case today. The necessary implication is that

any amount that DSL withdrew was on a purely ad hoc basis without there even being a notional break up between principal and interest; and, in any

case, the withdrawal was against security furnished by DSL in the form of a bank guarantee, i.e. a withdrawal with a condition attached of

guaranteed restitution. The decree was always one, of principal and continuing interest. There was no distinction between how much DSL could, on

withdrawal, apply towards principal and how much towards interest. That clearly left DSL at large to make appropriations of these ad hoc

withdrawals in such manner as it thought fit.

27.What Mr Mody asks of me is to read into the orders of the Appeal Court and the Supreme Court words not there, and to arrive at a conclusion

entirely tailored to MSEDCL's convenience -- rather than law -- by a process of interpolating alternative meanings into those very clear orders. That

is something I will not and cannot do.

28.Finally, this: the entire application is nothing more than a latter-day epiphany. If what MSEDCL says today is correct, then it must explain why, at

no point in time before this application, has it ever sought a clarification or a direction from the Court or Courts that made orders of deposit and

withdrawal in regard to the appropriation of the withdrawals. MSEDCL was aware of its liability under the arbitral award. It knew of the decree it

faced. It knew what it had to deposit, and what DSL was allowed to withdraw. It had enough opportunities to seek a clarification. MSEDCL never

did. It sat by. It is only when everything is over bar the shouting that it comes up with this quite extraordinary sophistry. We should not mistake the

singular purpose of the application: to evade, by any means at all, even at the risk of raising an argument solidly against established legal principle, a

portion of its decretal liability. As we shall shortly see, this runs to a pattern that marks MSEDCL's conduct from the time of the contract in question,

even before the arbitral award.

29.There is one further aspect to be addressed. Mr Mody has a concern that MSEDCL must deduct tax at source on the decretal interest awarded.

Again, this is incorrect. We should not be misled by the mere use of the word 'interest'. For the purposes of the Income Tax Act, this is not interest

earned"" as it might be on a fixed deposit or an investment. This is interest in the form of mitigation of a loss. When interest is awarded on a decree it

forms part and parcel of the decree itself. It no longer retains its character as 'interest'. We use word interest only as a term of art, for convenience,

or of want of a better expression. A decree that awards interest for a past period is actually only compensating the decree holder for that which he

might have earned had he not been put to the loss. It represents an opportunity cost. There is therefore no question of MSEDCL having any liability to

the revenue to deduct income at source. It must pay the amount to the Decree Holder. The tax liability of the Decree Holder, DSL, is a matter that

DSL itself will address and it is of no concern of MSEDCL.8

30.In my view there is absolutely no substance to this Chamber Summons. It deserves to be dismissed. It is.

31.The only question that remains is whether there should be another -- a fifth in sequence -- order of costs. In this, I do not believe I have any choice

in the matter at all. This is an Execution Application in the Commercial Division. The Commercial Courts, Commercial Division and Commercial

Appellate Division of High Courts Act, 2015 (""the Commercial Courts Act""), effected sweeping changes to the Code of Civil Procedure 1908

(""CPC""). Among those changes were significant changes to Section 35 of the CPC. The Commercial Courts Act substituted an entirely new Section

35 applicable to commercial matters covered by the new Act.

32.In its 253rd Report, the Law Commission of India, then under the chairmanship of Mr Justice AP Shah, former Judge of this Court and former

Chief Justice of the Delhi High Court, in regard to the Bill proposing the Commercial Courts Act said:9 8 Madhusudan Shrikrishna v Emkay Exports &

Ors, 2010 (2) BCR 38; Islamic Investment v Union of India, 2002 (4) BCR 685; Sino Ocean, supra, paras 27 and 28. 9 Law Commission of India,

253rd Report, January 2015, Section F(ii), pp. 45-47.

3.21.1 As recommended by the Supreme Court of India and the Law Commission, costs will have to follow the event as a meaningful deterrent

against frivolous litigation. In the Sahara judgment [Subrata Roy Sahara v Union of India, (2014) 8 SCC 470, at para 150], the Court observed:

He [the innocent suffering litigant] spends invaluable time briefing counsel and preparing them for his claim. Time which he should have spent at work,

or with his family, is lost, for no fault of his. Should a litigant not be compensated for, what he has lost, for no fault? The suggestion to the legislature is,

that a litigant who has succeeded, must be compensated by the one, who has lost. The suggestion to the legislature is to formulate a mechanism, that

anyone who initiates and continues a litigation senselessly, pays for the same. It is suggested that the legislature should consider the introduction of a

Code of Compulsory Costs.... The effort is only to introduce consequences, if the litigant's perception was incorrect, and if his cause is found to be,

not fair and legitimate, he must pay for the same.

3.21.2 In Rameshwari Devi v Nirmala Devi [(2011) 8 SCC 249, at para 55], the Supreme Court noted that another factor to be considered while

imposing costs is ""for how long the defendants or respondents were compelled to contest and defend the litigation in various courts.

3.21.3 Therefore, the proposed 2015 Bill shall also contain a clause ensuring that costs shall necessarily follow the event in all cases, except where the

court gives reasons in writing explaining why costs should 13th March 2018 DSL Enterprises Pvt Ltd v Maharashtra State Electricity Distribution Co

Ltd 916-CHSCDL246-18.DOC not follow. The model of costs proposed in the amendments to the A&C Act, 1996 by the Law Commission in its

246th Report will also be adopted in this Bill. This will entail amendments to Section 35 and Section 35-A of the CPC, which govern the award of

costs.

3.21.4 As proposed in the amendments to the A&C Act, 1996 in awarding costs, the court/arbitral tribunal will have regard to all circumstances

including-

a) The conduct of all parties;

b) Whether a party has succeeded in part of its case, even if the party has not been wholly successful;

c)Whether the party had made a frivolous counter claim leading to delay in the disposal of the case;

d)Whether any reasonable offer has been made by a party to settle; and

e)Whether the Party had made a frivolous claim and instituted a vexatious proceeding wasting the time of the Court.

3.21.5 ""Costs"" here will mean reasonable costs relating to:

a) fees and expenses of the arbitrators, courts and witnesses;

b) Legal fees and expenses; and

c) Any other expenses incurred in connection with the proceedings.

3.21.6 It is proposed to adopt the above model with suitable changes, to empower the Commercial Divisions and Commercial Courts to award costs

along the above lines, and to also make it mandatory to give reasons for not awarding costs. This, it is intended, will deter parties from making

frivolous claims or engaging in vexatious litigation, thereby adding to the burden of pendency and delays.

(Emphasis added)

Amended Section 35 reads thus:

Costs.

35.(1) In relation to any commercial dispute, the Court, notwithstanding anything contained in any other law for the time being in force or Rule, has the

discretion to determine:

(a) whether costs are payable by one party to another;

(b) the quantum of those costs; and

(c) when they are to be paid.

Explanation. For the purpose of clause (a), the expression costs shall mean reasonable costs relating to

(i) the fees and expenses of the witnesses incurred;

(ii) legal fees and expenses incurred;

(iii) any other expenses incurred in connection with the proceedings.

(2) If the Court decides to make an order for payment of costs, the general rule is that the unsuccessful party shall be ordered to pay the costs of

the successful party:

Provided that the Court may make an order deviating from the general rule for reasons to be recorded in writing.

Illustration The Plaintiff, in his suit, seeks a money decree for breach of contract, and damages. The Court holds that the Plaintiff is entitled to the

money decree. However, it returns a finding that the claim for damages is frivolous and vexatious.

In such circumstances the Court may impose costs on the Plaintiff, despite the Plaintiff being the successful party, for having raised frivolous claims

for damages.

(3) In making an order for the payment of costs, the Court shall have regard to the following circumstances, including--

(a) the conduct of the parties;

(b) whether a party has succeeded on part of its case, even if that party has not been wholly successful;

(c) whether the party had made a frivolous counterclaim leading to delay in the disposal of the case;

(d) whether any reasonable offer to settle is made by a party and unreasonably refused by the other party; and

(e) whether the party had made a frivolous claim and instituted a vexatious proceeding wasting the time of the Court.

(4) The orders which the Court may make under this provision include an order that a party must pay

(a) a proportion of another party's costs;

(b) a stated amount in respect of another party's costs;

(c) costs from or until a certain date;

(d) costs incurred before proceedings have

begun;

(e) costs relating to particular steps taken in the proceedings;

(f) costs relating to a distinct part of the proceedings; and

(g) interest on costs from or until a certain date. . Amendment of section 35A.

In section 35A of the Code, sub-section (2) shall be omitted. (Emphasis added)

34.The amended CPC clearly says that the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party. There is

a proviso. It says that I may make an order deviating from this general rule, but I can only do so for reasons to be recorded in writing. The amended

Section also tells us that in making an order of costs I must have regard to the conduct of the parties and whether, inter alia, the party made a frivolous

claim or instituted a vexatious proceedings wasting the time of the Court.

The restriction in Section 35-A(2) is removed; Section 35-A(1), for compensatory costs, remains. Section 35(4) then says that the order of costs

would include an order that the party must pay a proportion of the other sides costs, a stated amount in respect of the other party's costs, cost from a

given date and so on. There is also a provision for interest on costs in Section 35(4)(g). The amended Section 35 of the CPC also says that it prevails

over any other law for the time being in force or any other rules. It would thus prevail over any other provisions in the CPC as also any provisions in

the Bombay High Court Original Side Rules.

35.I am actually unable to even envision any reasons that might fall within the proviso to the general rule. The only submission from Mr Mody,

somewhat predictably, is that MSEDCL is a government company and these are public funds. The second submission is that the entire Chamber

Summons is based on orders of the Court, and therefore no costs should be imposed.

36.I do not believe these are even remotely compelling. The application from MSEDCL is, if anything, too clever by half. It is an application that ought

never to have been made. There is no basis for this in law. It is contrary to centuries-old settled law. The fact that MSEDCL has pursuant to the

orders of this Court including my order of 28th February 2018 deposited amounts in Courts is not an excuse. This matter has today consumed over a

fifth of the court working day for no good reason. Time has been spent before as well. Mr Dada submits that through out from the very beginning and

going back to the stage of the arbitral proceedings, the conduct of MSEDCL was to take every conceivable, and, very often, even inconceivable

defences only to obstruct. Mrs Justice Dalvi observed that MSEDCL's Petition under Section 34 was an attempt to escape liability for fundamental

breaches. The Arbitral Tribunal (of three eminent and generally conservative judges on questions of costs) were moved to impose costs of Rs. 1 crore

(though DSL sought much more) -- and that was 14 years ago, in 2004. The arbitrators said, even then, that MSEDCL raised 'untenable and

unsustainable defences which led to considerable delay in concluding the proceedings'. A Division Bench of this Court imposed further costs. Even the

Supreme Court had occasion to comment adversely on the conduct of MSEDCL. If the argument is that MSEDCL is a custodian of public funds, then

that actually warrants a direction that the costs I now award ought to be recovered from the salaries of its officers who authorised the filing of this

Chamber Summons. It is not a reason to make an exception to the general rule. As a custodian of public funds, MSEDCL was duty bound to be more

circumspect and cautious in the applications that it made.

37.The Arbitral Tribunal imposed costs of Rs.1 crores. That was in 2004 well before the Commercial Courts Act. Mrs Justice Dalvi imposed cost of

Rs.1,00,000/-, a significant amount in those days and also prior to the present Act. In this context, some observations by the Supreme Court in its order

dated 18th January 2018 in paragraph 42 may be usefully reproduced. Here, the Supreme Court culled out the salient findings in the arbitral award.10

42) Reasoning contained in the Award reveals following salient findings returned by the Arbitral Tribunal:

10 MSEDCL was the appellant before the Supreme Court.

(i) The appellant prevented respondent No.2 from performing the contract.

(ii) Respondent No.2 was ready and willing to perform the contract all throughout.

(iii) The appellant chose not to examine any of its Superintending Engineers who were in- charge for giving DTC locations to respondent No.2 and

as found by the Arbitral Tribunal, they were the kingpins of each circle for performance of the contract.

(iv) There is considerable merit in the submission of respondent No.2 that the Minutes of the Meeting dated 24th June 1998 is a fabricated

document.

(v) It is not possible to accede to the submission of the appellant that respondent No.2 had adequate lists of locations available and still failed to

install the contract objects.

(vi) It is obvious that there is something seriously wrong in the working of the appellant. Once a letter is listed in the affidavit of documents, it is

surprising how the letter was not traceable. Be that as it may, the fact remains that prior to the date of termination of contract, at least in three Circles,

the appellant had directed stoppage of installation work.

(vii) It is unfortunate that the Head Office of the appellant lacked control over the field offices and which ultimately led to the failure of the project.

It is futile to even suggest that the breach was not a fundamental one.

(viii) Respondent No.2 was ready and willing to perform their part of the contract while the appellant committed a breach by failure to supply DTC

locations as per the terms of the contract.

(ix) Respondent No.2 invested Rs. 163 crores in the project.

(x) The appellant failed to prove that deductions effected in the Performance Certificates were proper.

(xi) The appellant indulged in tampering the commissioning reports produced on record. The attempt does not behove a statutory body and requires

to be deprecated. The attempt made by the appellant by producing documents which are tampered with and which are not genuine indicates that the

appellant was willing to go to any extent to make allegations against respondent No.2.

(xii) The appellant did not make available large number of documents disclosed in the affidavit of documents on the ground that the same are not

available.

(xiii) Counter claim of the appellant is misconceived and is nothing short of counter blast to the claim made against respondent No.2.

(xiv) It was the appellant and appellant alone who had committed fundamental breaches of the terms of the work order.

(xv) The appellant has raised untenable and unsustainable defences which led to considerable delay in concluding the proceedings.

These are finding of facts base upon the material evidence that emerged on the record of the case.

(Emphasis added)

38.These findings were approved by the Supreme Court. It found no merit at all in MSEDCL's appeal, which it dismissed. The arbitral findings culled

out in the Supreme Court decision, and quoted above, are oddly prescient: those findings pre-dated the Commercial Courts Act by a full decade or

more, and yet the wording of those findings is echoed in the Commercial Courts Act: untenable and unsustainable defences, a frivolous defence, and a

frivolous counter-claim. And yet more: there are factual findings, now having attained finality, of tampering, fabrication and falsification -- all against

the very body that claims it is a 'custodian of public funds', and therefore, presumably, in some way sanctified if not actually canonized. But that

'custodian' has been found to be wholly remiss in discharging its public duties. This brings to bear the provision in the amended Section 35, and its sub-

clauses, set out fully above. There is no doubt at all in my mind that this application is entirely frivolous and is just another attempt to delay the

inevitable. I believe it is time that we sent out a signal that these practices must stop and the Government authorities must take responsibility for their

actions. Further, the Commercial Courts act has only deleted the restriction in Section 35-A(2), not the provision for compensatory costs in Section 35-

A(1).

39.Having regard to the provisions of substituted Section 35, there will be an order of costs against MSEDCL in the amount of Rs.30,00,000/-. The

amount is, in my view, not unreasonable. I have had to hear the parties on at least three occasions. The filings have gone to the stage of a sur-

rejoinder. These costs are not merely compensatory. That is why I have set out the recommendations of the Law Commission and, in extenso, the

provisions of the amended CPC. The statutory intent is to use costs, which are the general rule of ""you lose you pay"", as a deterrent to prevent

frivolous litigation. That kind of litigation, as the Supreme Court itself said, is an unacceptable clog and burden on the judiciary. A party must know

before it embarks on any judicial misadventure that if it puts up a case found to be useless, it will have to pay a price, and a steep price at that.

40.In Dnyandeo Sabaji Naik v Pradnya Prakash Khadekar,11 the Supreme Court said:

14.Courts across the legal system--this Court not being an exception--are choked with litigation. Frivolous and groundless filings constitute a serious

menace to the administration of justice. They consume time and clog the infrastructure. Productive resources which should be deployed in the handling

of genuine causes are dissipated in attending to cases filed only to benefit from delay, by prolonging dead issues and pursuing worthless causes. No

litigant can have a vested interest in delay. Unfortunately, as the present case exemplifies, the process of dispensing justice is misused by the

unscrupulous to the detriment of the legitimate. The 11 (2017) 5 SCC 496. present case is an illustration of how a simple issue has occupied the time

of the courts and of how successive applications have been filed to prolong the inevitable. The person in whose favour the balance of justice lies has in

the process been left in the lurch by repeated attempts to revive a stale issue. This tendency can be curbed only if courts across the system adopt an

institutional approach which penalises such behaviour. Liberal access to justice does not mean access to chaos and indiscipline. A strong message

must be conveyed that courts of justice will not be allowed to be disrupted by litigative strategies designed to profit from the delays of the law. Unless

remedial action is taken by all courts here and now our society will breed a legal culture based on evasion instead of abidance. It is the duty of every

court to firmly deal with such situations. The imposition of exemplary costs is a necessary instrument which has to be deployed to weed out, as well as

to prevent the filing of frivolous cases. It is only then that the courts can set apart time to resolve genuine causes and answer the concerns of those

who are in need of justice. Imposition of real time costs is also necessary to ensure that access to courts is available to citizens with genuine

grievances. Otherwise, the doors would be shut to legitimate causes simply by the weight of undeserving cases which flood the system. Such a

situation cannot be allowed to come to pass. Hence it is not merely a matter of discretion but a duty and obligation cast upon all courts to ensure that

the legal system is not exploited by those who use the forms of the law to defeat or delay justice. We commend all courts to deal with frivolous filings

in the same manner.

Therefore, in imposing costs as I do, I am following a mandate directed by the Supreme Court. In my reading of it, the decision tells us that we have

no choice at all. If we do not deal with frivolous cases most firmly, then the structure of our judiciary and its functioning are imperilled.

41.The Law Commission Report and the amendment both say the costs must be reasonable. But what is 'reasonable' must be governed not by some

misplaced sense of awe of money, or a terror of large amounts. Our hands must be guided by the dictum of the Supreme Court in decisions like

Dnyandeo Sabaji Naik, especially in commercial matters where the stated legislative intent is to use costs, as a general rule, to discourage litigation

frivolities. None should be able to 'take a chance on' or gamble in courts. No one has a vested right to delay a case or the enforcement of a decree.

The costs regime, as re-engineered by the Commercial Courts Act, has several components. Costs are to function as a deterrent. They are to be

realistic, not illusory (and most certainly not the price of a couple of coconuts and a cup of coffee). They may also be exemplary or punitive, as the

Supreme Court says, especially when a court finds, as I have, that the case of the party made to suffer costs is thoroughly without merit. I have, here,

not the slightest doubt that MSEDCL's only attempt is to persist in the dishonesty and illegality that seem to have stamped its conduct from the get-go.

The words of the Supreme Court summarizing the arbitral findings are enough to alarm even the most jaded judicial conscience. That a public body

should be found guilty on evidence of fabrication and manipulation is unthinkable. What remains of public governance if this is how statutory bodies

conduct themselves? Despite all that has gone before, MSEDCL still claims 'rights' in regard to its decretal debt. It has none. The costs I award today

are, in my view, not unreasonable having regard to the costs that DSL must have incurred, the waste of judicial time, and the utter lack of substance in

the MSEDCL's application, and the frivolous and speculative nature of the application. This order of costs therefore combines elements of amended

Section 35, Section 35-A(1) and the mandate of the Supreme Court in Dynandeo Sabaji Naik.

42.There will be interest on the amount of costs computed at 10% from today.

43.Mr Mody is instructed to say that MSEDCL deposited the entire debt and therefore there should be no order of costs. That deposit was too little

too late. It was made only after my order of 27th February 2018. It was also a pre-condition to hearing this application, one that comes so very late in

the day. There was no deposit of the entire decretal debt at any time before, and, as we have seen, there is a marked difference between this case

and authorities cited by Mr Mody. This argument is of no avail in any context.

44.The amount deposited pursuant to my order dated 27th February 2018 will be allowed to be withdrawn with all accrued interest. The Prothonotary

and Senior Master will make payment to DSL either by a physical instrument or by RTGS to an account that it designates. TheP rothonotary and

Senior Master will act on production of an authenticated copy of this order.

45.Mr Dada makes a statement that the DSL will give MSEDCL credit for the interest earned on the deposit made by MSEDCL upon receipt of the

amount from the Prothonotary and Senior Master.

That statement is noted and accepted.

Order accordingly.