Kilito Marine Services vs M/s. Siddarth Ore Carriers and Shri Shriram Malik

N.A. Britto, J.—Heard. By the present application, the Applicant whose Special Civil Suit No. 13/2001/A has been dismissed by Judgment dated 29-8-2008 and whose appeal has been admitted, seeks a direction against the Respondents to keep the bank guarantee given in the said Special Civil Suit alive, pending the disposal of the First Appeal filed by the Appellant.

The Appellant/Plaintiff had filed the said Civil Suit for recovery of a sum of Rs. 3,55,295/- with interest at the rate of 18% from 11-11-1995. There was also a counterclaim filed by the Defendants against the Plaintiff. The learned trial Court by the Judgment, under appeal, has dismissed the claim of the Appellant/Plaintiff as well as the counterclaim of the Respondents/Defendants. It appears that during the pendency of the Civil Suit there was a restraint order dated 17-3-2001 against the Defendants which prohibited the Defendants from selling the barges but subsequently the Defendants gave a bank guarantee on 22-4-2002 to satisfy the decree which might be passed against the Defendants, and that bank guarantee, according to learned Counsel on behalf of the Appellant, is kept alive until 16-6-2009. It is this bank guarantee which the Appellant submits should be kept alive till the disposal of the First Appeal.

Shri Nitin Sardessai, learned Counsel on behalf of the Appellant/Plaintiff submits that although the Plaintiff''s claim has been dismissed, the findings are in favour of the Plaintiff. Learned Counsel further submits that the Respondents in their statement recorded on or about 24-11-2008 in execution proceedings filed against the Respondents by some other decree holder has stated that the Respondents do not pay income tax as they have no income tax payable for the last 5 to 6 years. Learned Counsel further submits that the Respondents have also stated that the Respondent No.2 who is the proprietor of Respondent No.1 does not have personal assets, immovable as well as movable and considering the said statement it is necessary that the said bank guarantee ought to be kept alive till the appeal is finally disposed of, since the same as otherwise has been admitted by this Court. Learned Counsel on behalf of the Appellant has also placed reliance on the case of Maneklal Jainarayanji Sabu Vs. Ruprao Ganpatrao Bhonde, wherein this Court had directed the interim arrangement which had continued between the parties for more than ten years to be continued till the disposal of the appeal or till such time the lower appellate Court found that the Appellant had become disentitled for such relief.

Shri J. Godinho, learned Counsel on behalf of the Respondents has placed reliance on the case of Raman Tech. and Process Engg. Co. and Another Vs. Solanki Traders, wherein the Apex Court, with reference to Order 38, Rule 5 has stated that the object of supplemental proceedings is to prevent the ends of justice being defeated and that order in particular, is to prevent any defendant from defeating the realisation of the decree that may ultimately be passed in favour of the plaintiff, either by attempting to dispose of, or remove from the jurisdiction of the Court, his movables but the Court ought to be satisfied that there is a reasonable chance of a decree being passed in the suit against the defendant. Further, the plaintiff needs to establish that the defendant is attempting to remove or dispose of his assets with the intention of defeating the decree which may be passed.

As far as the facts of the present case go, the Plaintiff''s claim has already been dismissed by the learned trial Court and the appeal being First Appeal No.267/2008 has been admitted by this Court. At present, there is a finding given by the trial Court that there is nothing due and payable to the Plaintiff by the Defendants. Only because the appeal has been admitted, it does not follow that earlier orders passed should be continued. The trial Court might have at one stage obtained a bank guarantee from the Defendants with a view to secure the compliance of the decree which might have been passed against the Respondents/Defendants. In my view, since the Plaintiff''s suit has now been dismissed, it would not be in the interest of justice that the Defendants should continue to be directed to keep the said bank guarantee alive until the appeal is disposed off. With the above observations the application is disposed off.