1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2642 OF 2006 IN SUIT NO.3799 OF 1998 Sakinabai Q.Khakhar & Ors. .. Plaintiffs Versus M/s.Carona Ltd. .. Defendants Ms.J.Sidhwa i/b. Zaidy & Co. for plaintiffs Mr.Bharat Vaishnava for defendants. CORAM : S.C.DHARMADHIKARI, J. DATE : 9th February 2009. P.C. . This is a notice of motion by the plaintiffs. The reliefs claimed are that the Court Receiver should be directed to pay to the plaintiffs the entire balance of monthly sum of Rs.10,000/- deposited by the defendants. There 2 are other reliefs but essentially what is pressed is prayer clause (a) of this motion. 2. Reliance is placed upon an order by the Division Bench of this Court in the notice of motion which was moved in the appeal. The appeal was preferred against an order of a Single Judge whereby the amount of royalty was reduced to Rs.6000/-. Ultimately, both sides agreed that Rs.10,000/- should be paid per month. However, the appeal was subsequently allowed and the order of the learned Single Judge determining royalty at Rs.6,000/- was set aside. 3. Mr.Vaishnav states that presently the defendants are depositing a sum of Rs.12,500/- with the Court Receiver and the plaintiffs are withdrawing sum of Rs.2,200/- per month from the said amount. 4. Mr.Vaishnav states that the decision of 3 Full Bench of this Court, reported in 2007(5) Mh.L.J. 341 (Prabhudas Damodar Kotecha and Anr. Vs. Smt.Manharbala Jeram Damodar and Ors) would fully apply. Subsequently, the view taken is that even in the case of conducting agreement, the Full Bench decision will apply. Therefore, there is an arguable issue raised with regard to jurisdiction of this Court and in such circumstances, prayer clause (a) of the motion may be granted. 5. I am not deciding the issue of jurisdiction at this stage. The defendant is not precluded from raising that issue nor placing relevant material in support thereof, merely because I am considering the request made in prayer clause (a) of the notice of motion. The defendants are in possession and are allegedly conducting a running business of shoe shop. It is not disputed that the plaintiffs are entitled to withdraw the sums from the amount deposited 4 with the Receiver. Further, the statements in para 8 of the affidavit in support are not denied. In these circumstances and when defendants are depositing Rs.12,500/- per month, interest of justice would be sub-served if the plaintiffs are allowed to withdraw a sum of Rs.5,000/- per month from the amount deposited with the Court Receiver by the defendants. However, this would be without prejudice to the rights and contentions of both sides in the suit. Needless to state that defendants are not precluded from raising the issue of jurisdiction of this Court and all pleas in that behalf are kept open. Notice of motion is disposed in the above terms. No costs. 6. At this stage Mr.Vaishnav prays that this order be stayed for a period of two weeks to enable the defendants to file an appeal challenging the same. I have not decided any controversy much less about jurisdiction of this 5 Court finally. I have not even prejudiced the right of the defendants to raise appropriate contentions in their pending notice of motion. The issue of jurisdiction will be framed and decided, if a case is made out by the defendants. In such circumstances and merely because the parties are litigating for a long time, some additional amount is allowed to be withdrawn by the plaintiffs, does not mean that the suit is being decreed or any final orders are being passed. In these circumstances, when there is no prejudice to the defendants, the prayer for stay of this order is refused. (S.C.Dharmadhikari, J)