Interest ceased to run on the deposited amount after the dismissal of FAO No. 284/2005 on 04.12.2008.

JUDGMENT :

Anu Malhotra, J.

CM Appl. 25141-25143/2018 (Ex.)

1. Exemptions allowed subject to all just exceptions.

The applications stand disposed of. CM (M) 709/2018 & CM Appl. 25140/2018

2. The petitioner- Bharat Sanchar Nigam Limited, vide the present petition has sought the setting aside of the impugned order dated 25.05.2018 of the Court of the learned Additional District Judge, TisHazari Courts, New Delhi in Execution bearing No. 23611/16 and has sought that the objections filed by the petitioner be allowed.

3. Vide the impugned order on an application under Order XXI Rule 11 r/w Section 36 of the Arbitration and Conciliation Act, 1996 for enforcement of the Award dated 04.10.2004, the learned Executing Court dismissed the objections to that execution petition as filed by the objectors i.e. the petitioner herein which objections of the objectors i.e. the petitioner herein were to the effect that the JD (judgment debtor) had deposited the amount due against the Award dated 04.10.2004 of this Court in CM No. 13564/2005 in terms of the order dated 20.09.2005.

4. The impugned order observes to the effect that, it was admitted that the amount was deposited by the JD in terms of the said order dated 20.09.2005. The JD i.e. the petitioner herein had thus submitted that the JD was not liable to pay any interest on the said amount and that the DH was free to withdraw the amount from the High Court of Delhi.

5. On behalf of the DH, reliance was placed on the verdict of this Court in “N.K. Garg and Co. v. Union of India” in Execution no.336/2008, a verdict dated 18.03.2009 with reference to paragraph 20 of that verdict to contend to the effect that the interest did not cease to run where monies were deposited as security for stay of execution and that the deposit ought to be unconditional under Rule 1 Order XXI CPC to take benefit of such deposit for non-incurrence of interest.

6. The learned Executing Court, vide the impugned order thus, held that the objections raised by the JD in view of the said verdict in N.K. Garg and Co. (supra) could not be sustained and that the JD i.e. the petitioner herein was liable to pay interest on the due amount as deposit was made by the JD in FAO no. 284/05 and CM No. 13565-66/05 and subject to such deposit, the notice was issued and it was not a voluntary deposit. Vide the impugned order, warrants of attachment against the movables of the JD were directed to be issued.

7. Vide the present petition, it has been submitted by the petitioner that the petitioner had preferred an appeal bearing FAO No. 284/2005 against the order dated 03.08.2005 of the Court of the learned ADJ, Delhi, whereby, the objections filed by the petitioner under Section 34 of the Arbitration and Conciliation Act, 1996 against the Award dated 04.10.2004 had been dismissed and vide the order dated 20.09.2002 in FAO No. 284/2005, it was directed as under:-

“20.09.2005

Present: Mr.Asad Alvi for appellant.

+CMs.13565-66/05 in FAO.284/05

*

FAO.284/05 & CM.13564/05

Notice to respondents, returnable on 3rd of February, 2006.

Subject to deposit of amount in terms of award within six weeks, execution of award dated 04.10.2004 shall stand stayed.

DASTI as well.”

8. The petitioner has submitted that in compliance of these directions dated 20.09.2005, the petitioner deposited a sum of Rs. 9,13,092/- (Rupees Nine Lacs thirteen Thousand Ninety Two Only) with the registry of this Court in FAO no.284 of 2005 vide cheque bearing no.040272 dated 28.10.2005. The petitioner has further submitted that vide order dated 20.09.2005 in FAO No. 284/2005, this Court did not lay down any condition on the DH for withdrawing the said amount. The petitioner has further submitted that vide order dated 04.12.2008 of this Court, the FAO No. 284/2005 filed by the petitioner was dismissed and the Petition(s) for Special Leave to Appeal (Civil) No(s).11276/2009 against the said judgment dated 04.12.2008 was also dismissed by the Hon’ble Supreme Court on 13.05.2009.

9. The petitioner