1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR APPEAL AGAINST ORDER NO. 74 OF 2008 (Sushil Atmaram Pathepuria vs. Shri Mahesh Narayanrao Tidke ) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. SEPTEMBER 22, 2008. Heard Shri Dewani, learned counsel for the appellant – original plaintiff and Shri Bhambhurkar, learned counsel for the respondent – original defendant. The suit for specific performance is pending before the Civil Judge, Senior Division, Nagpur. In it, the appellant has applied for grant of temporary injunction and it has been rejected. The Court found that prima facie, the plaintiff has failed to prove his case. It also found that only amount of Rs.1,50,000/- has been paid and payment of amount of Rs.5,00,000/- as sought to be contended by the present appellant – plaintiff, has not been established. The matter was heard on 19.09.2008 and thereafter I have passed order and in pursuance of that order, I have heard the parties further. 2 The option was given to the appellant – plaintiff to keep in deposit with the trial Court the entire balance amount of Rs.17,50,000/- so that the suit can be expedited by calling upon the defendant, not to create any third party interest during the pendency of the suit. The plaintiff today has opposed this arrangement but defendant has stated that he is ready and willing to bring No Objection Certificate from the Society as required by clause (q) of the sale deed executed in his favour by Journalists Co-operative Housing Society Limited, Nagpur. He, however, states that the entire balance amount of Rs.17,50,000/- should be paid. The appellant – plaintiff is not ready and willing to pay the entire amount of Rs.17,50,000/- by contending that he is having proof that the amount of Rs.5,00,000/- has been received by the respondent – defendant and he invites attention to pleadings in this respect wherein the place, time and witness, in whose presence that amount was paid and received, is disclosed. He further states that as No Objection Certificate of Society is not there, there is no fault on the part of the appellant - plaintiff and the appellant - plaintiff cannot be called upon to keep in deposit the entire amount. He further states that the appellant – plaintiff is at the most ready and 3 willing to deposit amount of Rs. 12,50,000/-. After hearing parties, I find that the amount of Rs.5,00,000/- being claimed to have been paid in cash to present respondent and only proof in support thereof is some oral evidence. The question, therefore, will have to be gone into by the trial Court. In view of fair offer made by the respondent – defendant to execute sale deed, if the entire amount is paid and by showing readiness to bring N.O.C. from the society also, I find that the interest of justice will be satisfied by directing the appellant – plaintiff to deposit entire amount of Rs.17,50,000/- with the trial Court by 30th October 2008. If the amount is so deposited, the trial Court shall decide the suit itself as early as possible and in any case within a period of two years thereafter. The amount so deposited shall be invested in any Nationalised Bank by it and party succeeding shall be entitled to get the amount, depending upon the adjudication in the suit. Subject to such deposit, the respondent – defendant shall not create any third party interest in the suit property. If the amount is not deposited by 30th October 2008, the restraining order operating against the respondent – defendant shall cease to operate automatically. 4 In view of these directions, nothing survives in the present Appeal against Order. It is disposed of accordingly. JUDGE *GS.