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High Court Of Calcutta
BIMAL CHANDRA BASAK, AMARENDRA CHANDRA SENGUPTA
SHAW WALLACE AND CO.LTD. - Appellant
Versus
NEPAL FOOD CORPORATION - Respondent
Appeal 323 Of 1988
Decided On : 02/27/1990
ORDER 41 RULE 5(3) - STAY OF EXECUTION - CONDITIONS - SUBSTANTIAL LOSS - UNREASONABLE DELAY - SECURITY - DECRETAL AMOUNT - BANK GUARANTEE.
Fact of the Case:
Appellant, a company incorporated under the laws of Thailand, filed an appeal against a judgment and decree passed by the Trial Court in favor of the respondent, a body corporate established under the laws of Nepal, for recovery of a certain amount. The appellant filed a stay petition seeking a stay of execution of the decree and leave to file a Memorandum of Appeal without a certified copy of the decree.
Finding of the Court:
The court held that the appellant failed to satisfy the conditions laid down in Order 41 Rule 5(3) of the Code of Civil Procedure for granting a stay of execution. The court found that the appellant did not provide sufficient evidence to demonstrate substantial loss if the execution was not stayed, the application was not made without unreasonable delay, and the security offered was not adequate.
Issues: 1. Whether the appellant had satisfied the conditions for grant of stay of execution under Order 41 Rule 5(3) of the Code of Civil Procedure? 2. Whether the appellant had provided sufficient evidence to demonstrate substantial loss if the execution was not stayed? 3. Whether the application for stay of execution was made without unreasonable delay? 4. Whether the security offered by the appellant was adequate?
Ratio Decidendi: 1. The court held that the appellant failed to satisfy the conditions laid down in Order 41 Rule 5(3) of the Code of Civil Procedure for granting a stay of execution. The court found that the appellant did not provide sufficient evidence to demonstrate substantial loss if the execution was not stayed, the application was not made without unreasonable delay, and the security offered was not adequate. 2. The court held that the appellant did not provide sufficient evidence to demonstrate substantial loss if the execution was not stayed. The court found that the averments in the stay petition were vague and did not provide specific details of the alleged loss. 3. The court held that the application for stay of execution was not made without unreasonable delay. The court found that the appellant waited for eight months after the decree was passed before filing the stay petition. 4. The court held that the security offered by the appellant was not adequate. The court found that the appellant did not offer to deposit the entire decretal amount or provide a Bank Guarantee for the full amount.
Final Decision: The court dismissed the stay petition and directed the appellant to deposit a sum of Rs. 25,00000/- (Rupees Twenty-five lacs) in cash within 15th of March, 1990. Upon such deposit being made, the decree-holder was entitled to withdraw the said amount upon furnishing a Bank Guarantee to the satisfaction of the Registrar, Original Side of this Court for the full amount. The balance of the decretal amount was to be secured by furnishing Bank Guarantee in three stages.
( 1 ) THIS is an application for stay in an appeal preferred against an judgement and order passed by the Trial Court. We shall shortly set out the facts of this case. However, as we are not hearing the appeal on merits at this stage, we shall not go into the facts in details.
( 2 ) THIS suit was filed by the plaintiff Nepal Food Corporation a body corporate established under the appropriate laws of Nepal and carrying on business at Kathmandu, Nepal, against one U. P. T. Imports Exports Ltd. , a company incorporated under the appropriate laws of Thailand and Shaw Wallace R Company Ltd. , an existing company within the meaning of the Companies Act, 1956 (the appellant herein ). In this suit, the plaintiff prayed for a decree for Rs. 1,26,38,951. 06 p: The said suit was filed for recovery of the said amount, inter alia, on the ground that the plaintiff delivered to the defendant No. 1, U. P. T. Imports Exports Ltd. , certain quantity of Nepal parabolied rice on board a vessel for carriage to the port of Penang, Malayasia, The said vessel was owned by the defendant No. 1. A Bill of Lading in respect thereof was issued by the appellant herein (the defendant No. 2) for and on behalf of and as an agent of the defendant No. 1 duly authorised in that behalf. The goods were not delivered to the consignee, but it was delivered to some other person without production of the relevant Bills of Lading. Written Statement was filed. The suit was contested and, ultimately, by a judgment and decree dated 9th September, 1987, the learned trial Judge held that the plaintiff was entitled to a decree for damages equal to the value of the said, goods which amounts to Rs. 1,05,32,459. 22 p. It was further decreed that the plaintiff was also entitled to interim interest and interest on judgment at the rate of 9% on the said amount of Rs. 105,32,459. 22 p. on and from the date of the institution of the suit until payment. The learned Judge did not grant any interest for the period from 4th December 1978 to 3rd December 1979. It is to be pointed out that 4th December, 1978 is the date of the Bill of Lading and 3rd December, 1979 is the date of the institution of the suit.
( 3 ) BEING aggrieved by the same, an appeal was preferred and this stay petition filed. The first prayer, according to the practice and procedure of this Court, was for leave to file Memorandum of Appeal without certified copy of the decree and judgement appealed from upon usual undertaking. This is the prayer which is made in view of the provisions of the Code of Civil Procedure and our Rules which require that the Memorandum of Appeal must be accompanied by certified copy of the decree or order appealed from. However with the leave of the court, such memorandum of appeal may be filed without certified copy upon certain undertakings being given in accordance with the age-old practice of this premier High Court in India. In this connection we may refer to various decisions of 2his Court including that of the Division Bench of this Court in the case of Angur Bala vs. Rathindra Nath Mitra in Consolidated Appeal Nos. 393 of 1975 and 7 of 1976 delivered on 13th April, 1976. It is unfortunate that persons got acquainted with the practice of this court and the law laid down regarding the same, under a misconception about such practice have failed to appreciate the same. Shortly speaking, such leave is given to prefer such appeal in the case of urgency where without waiting for the certified copy an appeal has to be preferred to obtain a stay. However, as in this particular case, such memorandum of appeal was filed without such certified copy on 13th May, 1988, that is, about eight months after the decree was passed. After the affidavits were filed, this stay petition has now come up before us for final hearing. We may point out that no interim or ad interim order has yet been passed by the appeal court in this matter.
( 4 ) IN support of this stay petition, Mr. Sen has su
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