caselaws
Supreme Court of India
Dharmesh S. Jain vs Urban Infrastructure Real Estate … on 25 January, 2022Author: M.R. Shah
Bench: M.R. Shah, B.V. Nagarathna
Non-Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
MISCELLANEOUS APPLICATION NO.61/2022
IN
MISCELLANEOUS APPLICATION NO.1668/2021
IN
SPECIAL LEAVE PETITION(C) NO.14724/2021
Dharmesh S. Jain & another …Applicants/Petitioners
Versus
Urban Infrastructure Real Estate Fund …Respondent
ORDER
1. The present miscellaneous application has been preferred by the
applicants – original petitioners with a prayer to recall order dated
28.10.2021 passed in Miscellaneous Application No. 1668 of 2021.
2. Shri Shyam Divan, learned Senior Advocate has appeared on
behalf of the applicants and Shri Jayant Bhushan, learned Senior
Advocate has appeared on behalf of the contesting respondent.
Signature Not Verified
Digitally signed by R
Natarajan
Date: 2022.01.25
16:45:10 IST
Reason:
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2.1 Shri Shyam Divan, learned Senior Advocate appearing on behalf
of the applicants has made the following submissions in support of his
prayer to recall order dated 28.10.2021 passed in M.A. No. 1668/2021:
i) that Miscellaneous Application No. 1668/2021 itself was not
maintainable as the same was filed in a disposed of matter;
ii) that no notice was issued to the applicants, i.e., the original
petitioners in Miscellaneous Application No. 1668/2021 and that no reply
was filed on behalf of the applicants; and
iii) in a special leave petition filed by the applicants, such a direction
could not have been issued by this Court as passed vide order dated
28.10.2021. It is submitted, assuming that the applicants had not
complied with the order passed by the High Court dated 08.08.2019,
which was impugned before this Court, and the amount was not
deposited even within the extended period of time, as extended by this
Court, in that case, the only consequence would be that there was no
stay of the arbitral award and that the execution proceedings are to be
proceeded further. Therefore, the direction issued in order dated
28.10.2021 directing the applicants – original petitioners to deposit the
amount to be deposited as per the order of the High Court positively and
within the time granted by this Court and non-compliance of the same
shall be treated very seriously and non-deposit of the amount as directed
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by the High Court in the impugned order shall be treated as non-
compliance of our order also having a serious consequences, was not at
all warranted and/or such an order could not have been passed.
3. We have heard Shri Shyam Divan, learned Senior Advocate
appearing on behalf of the applicants at length.
At the outset, it is required to be noted that when this Court passed
order dated 28.10.2021, Shri Kunal Vajani, learned advocate appeared
on behalf of the applicants – original petitioners and this Court passed
order dated 28.10.2021 after hearing the learned counsel appeared on
behalf of the applicants – original petitioners. A copy of M.A. No.
1668/2021 was served upon the counsel and thereafter he appeared
and after hearing Shri Kunal Vajani, learned advocate who appeared on
behalf of the applicants, this Court passed order dated 28.10.2021. At
that time, neither any request was made to adjourn the matter so as to
enable the applicants to file reply nor any objection was raised with
respect to non-maintainability of M.A. No. 1668/2021. Therefore, now it
is not open for the applicants to make a grievance with respect to non-
maintainability of M.A. No. 1668/2021 and/or that no notice was issued.
4. Even otherwise, it is required to be noted that the present
application is nothing but an afterthought and only with a view to get out
the contempt proceedings initiated by the respondent by way of
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Contempt Petition No. 940/2021. It is to be noted that order dated
28.10.2021 was passed in the presence of the learned counsel
appearing on behalf of the applicants. Learned counsel who appeared
on behalf of the applicants was heard. The present application to recall
order dated 28.10.2021 has been preferred after a period of almost two
and a half months, i.e., on 17.01.2022 and that too after this Court
issued notice in the contempt proceedings and after the notice of
contempt petition was served upon the applicants. Therefore, the
present application is, as such, nothing but an afterthought and only with
a view to get out the contempt proceedings, which have been initiated
and filed as far back as on 18.11.2021 and notice was issued on
10.12.2021.
5. Even otherwise on merits also, order dated 28.10.2021 passed in
M.A. No. 1668/2021 is not required to be recalled. It is to be noted that
the special leave petition was arising out of the order passed by the High
Court of Judicature at Bombay dated 08.08.2019 in Notice of Motion
No.960/2019 in Commercial Arbitration Petition No. 55/2019. Notice of
motion was made absolute in terms of the prayer clause (a) on the
condition that the applicants herein shall deposit 50% of the awarded
sum within twelve weeks from 08.08.2019. Time granted by the High
Court was extended from time to time at the instance of the applicants
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herein but the applicants did not deposit the amount and prolonged the
matter and even the execution of the award. That thereafter after getting
extensions the applicants did not deposit the amount, belatedly, the
applicants preferred the present special leave petition before this Court
on 20.08.2021 with delay. Still, this Court condoned the delay ex-parte
and granted further eight weeks’ time from 17.09.2021 to comply with
the order passed by the High Court dated 08.08.2019, as prayed by the
learned counsel appeared on behalf of the applicants.
6. As order dated 17.09.2021 was passed ex-parte and without
notice to the respondent, respondent preferred M.A. No. 1668/2021 to
recall order dated 17.09.2021 contending, inter alia, that all attempts are
made on behalf of the applicants to delay the execution and even further
eight weeks’ time was sought only to kill the time and there is no
intention to deposit the amount and/or comply with order dated
08.08.2019 passed by the High Court. Therefore, having heard learned
counsel for the respective parties and considering the apprehensions on
behalf of the respondent that extension of time is sought only to kill the
time and delay the matter further and there is no intention to comply with
order dated 08.08.2019 and that the applicants though sufficient
indulgence have been shown by way of extension of time by the High
Court, the amount has not been deposited and therefore in the peculiar
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facts and circumstances of the case, we passed the order dated
28.10.2021. Therefore, when order dated 28.10.2021 was passed in the
peculiar facts and circumstances of the case, the same is not required to
be recalled, which was passed after hearing the learned counsel
appearing on behalf of the applicants also.
7. At this stage, it is required to be noted that even after order dated
17.09.2021, by which a further eight weeks’ time was granted, the
original petitioners – applicants herein have not complied with the order
passed by the High Court for which they sought extension. This shows
the conduct on the part of the applicants. Even thereafter, there is no
application for extension of time.
Having taken the advantage/benefit of order dated 17.09.2021 of
extension of time to comply with the order passed by the High Court,
thereafter it would not be open for the applicants to contend that on non-
compliance the necessary consequence under the Arbitration Act may
follow and the execution proceedings may have to be proceeded further.
Be that as it may, when order dated 28.10.2021 has been passed after
hearing the learned counsel for both the parties and as observed
hereinabove on considering the apprehensions on the part of the
respondent that the applicants have no intention to comply with the order
passed by the High Court and they just want to delay the proceedings,
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order dated 28.10.2021 has been passed. Therefore, no case is made
out to recall order dated 28.10.2021 passed in M.A. No. 1668/2021.
8. In view of the above and for the reasons stated above, the present
application stands dismissed.
…………………………………..J. [M.R. SHAH]
NEW DELHI; ……………………………………J.
JANUARY 25, 2022. [SANJIV KHANNA]
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