Decided on July 17,2019

B.B.M.Enterprises Respondents


- (1.) The Court : Mr.Chowdhury, learned advocate appears on behalf of applicant in this application for stay of award. He submits, the award is for Rs.1,54,04,664/-. Said award is in full and final settlement of claim referred to the Tribunal plus interest and cost. He hands up copy of order dated 14th August, 2018 made by executing Court, by which stood attached a sum of Rs.1.55 crores from amount lying to credit of applicant with Reserve Bank of India, Kolkata. According to him, requirement for grant of stay of money decree under provisions of the Code of Civil Procedure have thus been met by his client. There should be stay of operation of the award pending adjudication of challenge to it.
(2.) Mr.Ghosh, learned senior advocate appears on behalf of award holder and relies on judgment dated 12th July, 2019 of Supreme Court in, inter alia, Civil Appeal 5432 of 2019 (Pam Developments Private Ltd. Vs. State of West Bengal), paragraph 27, which is reproduced below:- "27. Although we are of the firm view that the archaic Rule 8A of Order XXVII CPC has no application or reference in the present times, we may only add that even if it is assumed that the provisions of Order XXVII Rule 8A of CPC are to be applied, the same would only exempt the Government from furnishing security whereas under Order XLI Rule 5 of CPC, the Court has the power to direct for full or part deposit and/or to furnish security of the decretal amount. Rule 8A only provides exemption from furnishing security, which would not restrict the Court from directing deposit of the awarded amount and part thereof."
(3.) He emphasises the distinction made by Supreme Court with reference to Rule 8-A in Order XXVII of the Code, to only provide exemption to government from furnishing security, as would not restrict Court from directing deposit of awarded amount and part thereof. He submits, stay should only be granted upon deposit by applicant of awarded amount and interest awarded thereon accrued up to date of award. In other words, the attachment order does not satisfy requirement for grant of stay of award. Proviso in sub-section (3) in section 36 of Arbitration and Conciliation Act , 1996 says, Court shall, while considering application for grant of stay in case of arbitral award for payment of money, have due regard to the provisions for grant of stay of a money decree under provisions of the Code. Provisions for grant of stay of money decree in the Code are given in Order 41. They mandate, appellant shall deposit amount disputed in the appeal or furnish such security. Discretion of Court in granting stay of money decree is in allowing time for deposit or security. Court also has discretion to direct furnishing such security as it may think fit. There is no discretion regarding amount to be deposited or secured. That has to be the amount disputed by appellant. On query from Court Mr. Chowdhury submits, said awarded amount is disputed and secured by way of attachment order of executing Court. He submits, no further security should be required for grant of stay of the award.;

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