1 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1717 OF 2009 IN SUIT NO.3552 OF 2004 Papeyon Developers Pvt.Ltd. .. Plaintiff versus Dr.Eustace Joseph Roques D'mello and others .. Defendants ... Mr.P.K.Shroff with Mr.D.V.Deokar, Subodh Joshi, Ms.Bharati Bhagwat, Mr.Medhavin Bhatt i/b P.K.Shroff for the plaintiff. Mr.Pradeep Sancheta, Mrs.Kashmira Bharucha, Mr.Phiroze Mehta and Kapil Sampat i/b Desai & Chinoy for defendant nos.3, 4 and 5. Mr.Clive D Souza for defendant no.6. CORAM : D.G. KARNIK, J DATED : 18th June 2009 P.C:- 1. Heard both sides. 2. This motion is taken out by defendant nos.3, 4 and 5 seeking permission to redeposit of the amount withdrawn by them from the court. 2 3. The plaintiff filed a suit for specific performance of an agreement of sale wherein he prayed for relief of interim injunction restraining the defendants from selling the suit property. Injunction was granted subject to a condition that the plaintiff deposits the entire amount of consideration in the court. Accordingly, plaintiff deposited the entire amount of consideration in the court. Thereafter, the present applicants, who are defendant nos. 3, 4 and 5 in the suit and who claim to have 1/3rd share in the suit property for withdrawal of their share of money and they were allowed to do so subject to furnishing of a bank guarantee for repayment. They withdrew the amount of their share and they now pray for permission to redeposit the amount and revocation of the bank guarantee given by them. 4. The plaintiff has objected the request principally on the ground that withdrawal of the amount by defendant nos.3, 4 and 5 has created certain rights in its favour. He submitted that withdrawal of the amount by the applicants would result into waiver of the notice of termination issued by them. Suffice it to say that keeping this contention of the plaintiff open about the effect of withdrawal of the amount, the applicants can be permitted to deposit the amount in the court. 3 5. Learned counsel for the plaintiff then submitted that the amount was permitted to be withdrawn by breaking the fixed deposit. This has resulted into a loss of interest. Perusal of the report of the Prothonotary shows that the rates of interest have gone up. Loss of interest would be only to the extent of loss of interest on the amount withdrawn. Defendants would therefore be required to redeposit the amount with interest. 6. In view of this, I pass the following order:- O R D E R . The applicants are permitted to redeposit the amount withdrawn by them together with interest thereon at 8.8% from the date of which they withdrew the amount till the date of deposit. On such deposit, bank guarantee issued by the applicants for repayment would stand revoked and cancelled. . The amount if redeposited by the applicants shall be invested by the office in the same bank wherein the remaining amount has been invested. (D.G. KARNIK, J)