KBP 2728-09.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2728 OF 2009 Jog Engineering Limited ..Petitioner Vs. Suresh Sahebrao Borde ..Respondent ......... Mr.Aditya Bapat, for petitioner. Mr.A.B.Tajane, for respondent. ......... CORAM : A.S.OKA, J.. DATE : 31 th August, 2009. P.C. : 1] Heard learned counsel for the petitioner. The petitioner is the original defendant in a suit filed by respondent. The suit was filed under Order XXXVII of the Code of Civil Procedure, 1908. The suit was filed for recovery of a sum of Rs.60,500/- together with interest thereon. The suit was filed for recovery of unpaid salary, gratuity, leave encashment etc. allegedly payable by the petitioner to the respondent. By the impugned order passed on application for leave to defend made by the petitioner, the learned trial Judge has granted a conditional leave to the petitioner to defend the suit subject to deposit of a sum of Rs.25,000/- within fifteen days. 2] The learned counsel appearing for the petitioner submitted that the suit has no merit. He submitted that a summary suit could not have been maintained only on the basis of what is set out in the letter of appointment and in any case, the substantial part of the claim is not covered by the said letter. He, therefore, submitted that this was a case for grant of unconditional KBP 2728-09.sxw 2 leave. 3] I have carefully considered the submissions. By this writ petition under Article 227 of the Constitution of India, the petitioner challenges a discretionary order passed by the trial court by which a conditional leave to defend the suit has been granted to petitioner subject to deposit of a sum of Rs.25,000/-. The claim for salary in the suit is for sum of Rs.29,000/-. Rest of the claim is of leave encashment and gratuity. In the circumstances, it is not possible to interfere with the discretionary order passed by the trial court. 4] In terms of the order passed by this Court, the petitioner has already deposited a sum of Rs.25,000/- in this court. It is made clear that the deposit of the said amount in this court shall be treated as the compliance by the petitioner with the order dated 30 th January, 2009 and therefore, the petitioner will be entitled to defend the suit. 5] Subject to what is observed above, the writ petition is rejected. The sum of Rs.25,000/- deposited by the petitioner in this court shall be transferred to the trial court. On receipt of the amount, the trial court will invest the same in a fixed deposit in any nationalised bank and the same be renewed from time to time till the disposal of suit. The final order regarding disbursement of amount with accrued interest thereon shall be passed by the trial court at the time of disposal of suit. If written statement is not filed by the petitioner, the same shall be filed within a period of six weeks from today. ( A.S.OKA, J. )