1. Notice of Motion No.2853 of 2010 is taken out on behalf of Defendant No.2 and Notice of Motion No.3649 of 2010 is taken out on behalf of Defendant No.3. Both the parties have taken out their respective Notices of Motion as parties to whom prejudice was caused by the ex-parte order dated 12th January 2010 obtained by the Plaintiff for arrest of the cargo on board M.V.Amitees at Kandla. While obtaining the ex-parte order of arrest, the Plaintiff had given an undertaking in writing to this court under rule 941 of The Bombay High court (OS) Rules to pay such sums by way of damages as this Hon'ble Court may award as compensation in the event of a party sustaining prejudice by such ex-parte order.

2. The order of arrest was held to be wrongful by the Division Bench of this Court by a judgment and order dated 23rd March 2010.

3. On 6th September 2010, the Plaintiff sought leave of this Court to withdraw the Suit. The application for withdrawal was opposed by the counsel for Defendant No.2. However, the Suit was allowed to be withdrawn with the observation that the withdrawal of the Suit cannot affect the Defendants' rights to enforce the undertaking by taking out a Notice of Motion. Against this order, the Plaintiff filed an Appeal bearing (Lodg.) No.70 of 2011 which came to be dismissed by an order dated 17th August 2011. While dismissing the Appeal, the Division Bench observed as under:

“2. This is a most frivolous Appeal. The Plaintiff has withdrawn the Suit. The Court permitted him to withdraw the Suit. The Plaintiff before withdrawing the Suit had applied for interim relief and had given an undertaking to the Court that in case the Defendants suffer any damages as a result of the interim relief that is granted in his favour, he will make the good loss. All that is done by the learned Single Judge by the order impugned in the Appeal is that liberty is given to the Defendants to take out proceedings for enforcement of the undertaking which was given by the Appellant/ Plaintiff in his Suit. By no stretch of imagination, the order of the learned Single Judge granting liberty to the Defendants to enforce the undertaking given by the Plaintiff can be faulted. The Appeal is therefore rejected. The Appellant is directed to pay to the Respondents a sum of Rs.25,000/- as and by way of costs.”

4. Against this order, the Plaintiff filed an SLP which also came to be dismissed by an order of the Apex Court on 14th January 2012.

5. In both the Notices of Motion the Defendants have requested the Court to direct the Plaintiff to pay damages as per the undertaking given by the Plaintiff to this Court.

6. On 13th January 2014, when both the Notices of Motion came up for hearing, the Plaintiff filed an affidavit dated 13th January 2014, by which, the Plaintiff brought to the notice of this Court and Defendant Nos.2 and 3 that the Plaintiff-Company has filed a reference before the Board for Industrial and Financial Reconstruction (BIFR) under Sick Industrial Companies Act, 1985 (“SICA”) and the reference is pending.

7. In view thereof, the necessity arose, before going into the merits of the damages mentioned in the notices of motion, to determine whether the present Notices of Motion can be proceeded with or not in view of the provisions of Section 22 of SICA.

8. The matter was stood over to 20th January 2014 on which date again it was stood over to 24th January 2014. The matter was partly heard on 24th January 2014 and due to paucity of time, was stood over to 27th January 2014 for further hearing.

9. Mr. Vernekar appearing for Defendant no.3 informed the Court that the matter is pending before the AAIFR and not BIFR. Still the question remains as to whether we can proceed with both the Notices of Motion or not.

10. Since both the Notices of Motion were taken out in view of the written undertaking given by the Plaintiff to this Court while obtaining an ex-parte order of arrest and the reference of the plaintiff was pending before the AAIFR, prel