( 1. ) THIS is a revision by judgment-debtor Nepa Limited against the order by which its application raising the two objections regarding the enforcement of the award against it has been rejected.

( 2. ) IT is not in dispute that an award dated 14-4-2000 has been passed by the arbitrator against the judgment-debtor company directing it to pay an amount of Rs. 14,49,300/- with interest at the rate of 18% per annum to the decree holder. The respondent had deposited an amount of Rs. 20,59,800/-with the petitioner company on 22-10-1996 for "due performance of the contract". Out of this security deposit a deduction of Rs. 6,10,500/- has been allowed.

( 3. ) THE objection of the judgment-debtor is two-fold. Firstly, the judgment- debtor company has become "sick industrial company" under the Sick Industrial Companies (Special Provisions) Act, 1986 (hereinafter to be referred to as the Act) and its application under Section 15 of the Act has been registered by the Board for Industrial and Financial Reconstruction on 29-5-1998 in Case No. 502 of 1998 and therefore Section 22 (1) of the Act has come into play and it bars any proceeding for "execution, distress or the like against any of the properties of the industrial company except with the consent of the Board". Secondly, an amount more than the amount of the award is recoverable from the decree-holder as "excise duty" and, therefore, the award cannot be executed.

( 4. ) THE reply of the decree holder to these two objections is that he is entitled to the refund of security deposit and the bar created by Section 22 (1) of the Act is not attracted to the claim for refund of the security deposit which is the property of the decree holder and not of the judgment-debtor company. It is pointed out that the amount of security deposit was deposited by this company in fixed deposit. A photo-copy of the FDR No. 708503 has been produced as proof of fixed deposit showing that this money was kept separately by the judgment-debtor company. Secondly, there is no liability fixed as yet by the authorities for payment of the excise duty.

( 5. ) THE executing Court has rejected both the objections and has proceeded with the execution.

( 6. ) THE language of Section 22 (1) of the Act is clear. It bars execution against the "property of the company". The security deposit made by the decree-holder for due performance of the contract entered into with the company cannot by any stretch of imagination be held to be the property of the company especially when it has been set apart in the form of a fixed deposit by the company in its name. As per Oxford Shorter English Dictionary the meaning of deposit is "something laid up in a place, or committed to the charge of a person for safe-keeping". The person with whom such deposit is made is known as depository. He is a person with whom anything is lodged in trust; a trustee; one to whom anything is committed or confided. In Law, a bailee of personal property to be kept for the bailor without recompense. In Law Lexicon by P. R. Aiyar edited by Justice Y. V. Chandrachud the word deposit is defined : "thing stored or entrusted for safe-keeping", an act by which a person receives the thing of another person, with the obligation to keep it and to return it in kind; a naked bailment of goods, to be kept for the depositor without reward and to be returned when he shall require it; the delivery of a thing for custody, to be redelivered on demand without compensation. The essence of a deposit is that there must be a liability to return it to the party by whom or on whose behalf it is made on the fulfilment of certain conditions.

( 7. ) THE person with whom the security deposit is made is a bailee or the trustee of that money and that is to be refunded to the person by whom the deposit has been made. The deposit is only for the purpose of safe keeping. The person with whom the deposit has been made holds it in trust for the depositor and has to return it to the depositor