STATE OF WEST BENGAL Vs. B.B.M.ENTERPRISES
HIGH COURT OF CALCUTTA
STATE OF WEST BENGAL
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(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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