(Per : HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA) All these applications are taken up together for consideration and we propose to dispose of all these applications by this common order.
There is no dispute that the appellant before us has suffered a money decree to the extent of Rs.20,18,491/- with interest at the rate of 12% per annum from the date of decree till realization. Such decree was passed on March 27, 2008 and against the said decree, the present appeal has been filed.
In the meantime, the respondent/decree holder has already attached immovable property of the appellant for realization of the money since decreed. It appears from record that in the past on an application for stay of execution, a Division bench of this Court stayed all further proceedings of execution on condition that the appellant should give bank guarantee to the extent of decreetal amount. There is no dispute that such bank guarantee has been given and the period of guarantee was going to expire on January 11, 2012.
The learned advocate appearing on behalf of the appellant submits that before expiry of the said period of guarantee, his client has given a fresh guarantee for the amount of Rs.30,30,340/- and the said guarantee is valid upto January 11, 2013 as it appears from the Bank Guarantee Confirmation Letter dated January 4, 2012.
The learned advocate appearing on behalf of the respondent has, on the other hand, submitted that taking into consideration interest at the rate of 12% per annum on the principal amount of Rs.20,18,491/-, the total amount will exceed the amount already secured by way of bank guarantee and, therefore, in spite of giving bank guarantee, the attachment of the immovable property should continue.
The learned advocate for the appellant, however, has today in open court offered to pay a sum of Rs.12,23,847-51ps. without prejudice to the appellant's rights and contentions in the appeal.
In our opinion, in view of offer of the said amount of Rs.12,23,847-51ps . to the respondent, there is no justification of enhancing the amount of bank guarantee any further and at the same time, there is no necessity of continuing with the attachment of the property. It is needless to mention that the amount of Rs. 12,23,847-51ps. offered by the appellant should be accepted by the respondent without prejudice to his rights and contentions in the appeal. We keep in record that the respondent has not preferred either any cross-objection or any separate appeal for enhancement of the decreetal amount.
We, therefore, direct the learned advocate for the appellant to hand over the cheque to the learned advocate for the respondent who will hand over the same to his client who is present in the Court and the respondent will encash the cheque within a week from today and after encashment there will be no further accrual of interest on the amount already paid today.
Therefore, in the changed situation where the appellant has decided to pay the part of the amount, in our opinion, there is no justification of enhancing the amount of bank guarantee which is already given to the extent of Rs.30 lakh and odd. Similarly, after such bank guarantee, there is also no justifiable reason for continuing with the attachment of the property. We, therefore, direct that after the encashment of the cheque today handed over to the respondent, the attachment of the immovable property of the appellant will be lifted.
The appellant will give advance notice of renewal of bank guarantee, if the appeal is not heard within the extended period of bank guarantee as provided in the order dated September 7, 2010 passed by the Division Bench of this Court.
With the above observations, the applications are disposed of.
(BHASKAR BHATTACHARYA, ACTING CJ.) (J.B.
PARDIWALA, J.) zgs/-