JUDGMENT

S.C. Dharmadhikari, J. - This is a Notice of Motion for stay.

2. The Appeal has been admitted.

3. The Appellant-Original Defendant No.1, by this Notice of Motion, prays that pending the hearing and final disposal of the present Appeal, the implementation and operation of the judgment and decree dated 5th January, 2018 in Suit No.2205 of 1997 be stayed.

4. On such a Notice of Motion, on the earlier occasion i.e. 30th August, 2018, the following order was passed:-

"1 When this Notice of Motion was argued for some time, Mr. J.P. Sen, learned senior counsel appearing on behalf of the appellant/orig. defendant No.1, on instructions, states that without prejudice to the rights and contentions of the appellant and equally that of the respondents, a sum of Rs. 4,00,00,000/- (Rs.Four Crores) would be deposited in this Court by the appellant within two weeks.

2. We accept this statement and place this Notice of Motion after two weeks. Needless to clarify that to enable the appellant to deposit this sum, no steps in furtherance of the decree shall be initiated and if initiated by the plaintiff/decree holder, that decree shall not be executed and enforced till then. 3 Stand over to 14th September 2018."

5. After report by the Registry that the condition imposed in the earlier order has been complied with, that this Notice of Motion has been listed for hearing and final disposal. On this Notice of Motion, we have heard Mr. Sen, the learned Senior counsel in support and Mr. Aspi Chinoy, the learned Senior counsel on behalf of the Original Plaintiffs in opposition.

6. In the affidavit in support of this Notice of Motion, it is urged by the Applicant that it has made out a strong prima facie case, the balance of convenience is in its favour and it will suffer great harm and irreparable injuries in the event any further sum is directed to be brought in or any condition is imposed to secure the balance decreetal amount.

7. Our attention has been invited by both counsel to Order 41, Rule 1 sub-rule 3 and Order 41, Rule 5 of the Code of Civil Procedure, 1908 and particularly the condition in Order 41, Rule 5 sub-rule 5 which says that notwithstanding anything contained in the foregoing sub-rules, where the Appellant fails to make the deposit or furnish the security specified in sub-rule 3 of rule 1, the Court shall not make an order staying the execution of the decree.

8. This, according to Mr. Chinoy is a mandate. There may be a discretion insofar as Order 41, Rule 1 sub-rule 3 and by the Bombay Amendment introducing a proviso thereto. However, that does not enable the unsuccessful Defendant/Appellant to say that there should be either a unconditional stay of the execution of a money decree or that the rights and equities should be balanced by substantial deposit and for the rest of the sum the security to the satisfaction of this Court. It is for the Court to take a prima facie view and the Judgment-Debtor-Defendant cannot dictate a particular course of action favourable to him is Mr. Chinoy''s argument.

9. Reliance is placed firstly on a Division Bench judgment of t his Court by Mr. Sen and rendered in the case of Ecopack India Paper Cup Pvt Ltd v. Sphere International reported in 2018 SCC Online Bom 540 (Appeal No. 101 of 2018 decided on March 14, 2018) .

10. Mr. Sen would submit that in this case the Division Bench found that the arbitral Tribunal made the interim award. There was a sum directed to be paid. However, while the Award was made, there was no reference whatsoever to the Respondent''s contention. The case of the Respondent in the Written Statement undoubtedly was required to be considered by the arbitral Tribunal in its entirety and thereupon it would have made an interim award. There is no reasoning whatsoever in the interim award in rejecting the Respondent''s case as made out in the reply opposing the interim award. It is therefore that the learned Single Judge was justified in holding that the arbitral Tribunal has not