1 WP 7903.2011 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7903 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions and Registrar’s orders Court’s or Judge’s orders Mr. P.R.Patil, Advocate for the petitioner. Mr. K.C.Sant, Advocates for the respondent. ............................. CORAM : S.V. GANGAPURWALA, J. DATE :11/10/2011 PER COURT : 1. The present Respondent had filed Suit purportedly under Order XXXVII of the Code of Civil Procedure [ For short, ‘ the Code ’ ] for recovery of his legal fees against the present petitioner. The said Suit is pending with the Court of the 3rd Jt. Civil Judge (S.D.), Jalgaon. The petitioner, pursuant to the summons, appeared and filed an application for leave to defend. The Court allowed the said application, granted leave to defend on condition that the present petitioner deposits half of the suit claim in the Court within six ( 6 ) weeks. The said order is assailed in the present Writ Petition. 2 WP 7903.2011 2. Mr. P.R.Patil, the learned counsel for the petitioner submits that the Court has granted leave to defend. Once the Court comes to the conclusion that the defendant has got a valid case to defend, then the Court can not put such a condition on the defendant to deposit the amount. For the said purpose, the learned counsel relies on the Judgment of the Apex Court in the case of Santosh Kumar V/s Bhai Mool Singh reported in AIR 1958 Supreme Court – 321 and the Judgment of the Apex Court in the case of M/s Mechalec Engineers & Manufacturers V/s M/s Basic Equipment Corporation reported in AIR 1977 Supreme Court – 577. The learned counsel contends that the case involves triable issues and the petitioner has a fair and bonafide defence. In such circumstances, the defendant is entitled for unconditional leave to defend. 3. Mr. K.C. Sant, the learned counsel for the plaintiff submits that the defendant has failed to abide by the order passed by the trial Court and has failed to deposit the amount as directed by the trial Court. In such circumstances, the plaintiff is entitled for the said amount. The learned counsel relies on the Judgment of the learned Single Judge of this Court in the case of A B and U communication Pvt. Ltd. V/s Jitu Shah reported in 2009 ( 6 ) Bom. C.R. - 427. The learned counsel contends that the defendant has not denied the total claim of the plaintiff. In such circumstances, the Court was justified in putting the condition of deposit of half of the suit amount. 3 WP 7903.2011 4. The plaintiff has filed a Suit claiming recovery of legal fees against the defendant. There is no dispute that the plaintiff was a lawyer of the defendant in various cases. The defendant has cancelled the empanelment of plaintiff by invoking clause 10 of the agreement. The defendant in reply to the notice issued by the plaintiff prior to the filing of the Suit had also not denied that it is not liable to pay any amount to the plaintiff. On the contrary, in reply to the notice, the defendant contends that the defendant is processing the bills. The defendant even after lapse of two ( 2 ) years has not come forward with the case that it is liable to pay only the particular sum and not the suit claim. At the same time, has not denied that it is not liable to pay some amount to the plaintiff. 5. In view of the above conspectus of the matter, the Judgments of the Apex Court in the case of Santosh Kumar and M/s Mechalec Engineering & Manufacturers [ supra ] would not be applicable. The trial Court has not directed the defendant to deposit the total suit claim but has directed the defendant only to deposit 50 % of the suit claim. The Court has taken into consideration the fact that the defendant has not denied the total claim nor has denied its liability to pay some amount to the plaintiff. 6. In view of the above, the discretion exercised by the Court as contemplated under Order XXXVII Rule 3 ( 5 ) of the Code can not be faulted. 4 WP 7903.2011 7. The last part of the order of the trial Court regarding disbursement of the amount, if deposited by the defendant as directed above, shall be subject to the final decision of the Suit, can not be sustained at this stage. The said part of the order is quashed. The amount deposited by the defendant shall be kept in the Fixed Deposit in any Nationalized bank and after the final decision of the Suit, depending upon the decision, the order shall be made about the disbursement. The defendant/present petitioner shall deposit the amount as directed by the trial Court within the period of four ( 4 ) weeks from today i.e. 08/11/2011. 8. The Writ Petition as such is disposed of. No costs. [ S.V. GANGAPURWALA, J.] KNP/WP 7903.2011 5 WP 7903.2011