1 CAF.2462.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.2462 OF 2010 IN FIRST APPEAL NO.1072 OF 2009 Smt.Parvati Tukaram Naik & Ors. ...Applicants Versus Shri.Jagannath Haribhau Gaikwad & Ors. ...Respondents ...... Mr.U.B.Nighot for Applicants. Mr.Ranjan Tripathi i/b Mr.S.S.Vidyarthi for Respondent No.3. ...... CORAM:- A.M.KHANWILKAR AND A.A.SAYED, JJ. DATED:- JULY 20, 2010. P.C. 1. Heard Counsel for the parties. 2. This Application is filed by the Claimants, in effect, praying for modification of order dated November 6, 2009. It is further prayed that the Claimants be permitted to withdraw the balance 50% amount deposited by the Insurance Company which has been invested in the Fixed Deposit of a Nationalised Bank in terms of order dated November 6, 2009. 3. This Application is opposed by the Insurance Company on the argument that the relief claimed in this Application is in the nature of 2 CAF.2462.10.sxw review of order dated November 6, 2009. This argument does not commend to us for more than one reason. In the first place, it is admitted position that the order dated November 6, 2009 was passed without hearing the Applicants/Claimants. Counsel for the Insurance Company submits that the Claimants were duly served and the fact that they were not heard, cannot be the basis to ignore the order dated 6th November 2009. Assuming that the Claimants were duly served before the order was passed on 6th November 2009, it would not preclude the Claimants to apply for modification of the said order. Assuming that the Application was to be treated as Review Application, it is noticed that the Judges who were parties to the said decision are not available. In that case, the Application will have to be proceeded before this Bench which has been assigned the work of First Appeals. 4. The next objection taken by the Counsel for the Insurance Company is that the amount cannot be permitted to be withdrawn without imposing condition on the Claimants of furnishing Bank Guarantee. To buttress this submission, reliance is placed on the decision of the Apex Court in the case of The Oriental Insurance Co.Ltd. v. M.S.Lakshmisha & Ors. reported in JT 2000 (Supp.1) SC 207. Even this objection does not commend to us. 3 CAF.2462.10.sxw The Counsel has clearly glossed over the operative order of the same decision which postulates that the Claimants can be permitted to withdraw 50% amount on furnishing Bank Guarantee of a Nationalised Bank or on furnishing security to the satisfaction of the Court or the Registrar. 5. We are inclined to accept the submission canvassed on behalf of the Applicants/Claimants that they would furnish solvent security to the extent of commensurate amount to the satisfaction of the Trial Court as condition precedent for withdrawing the balance 50% amount which has been invested in a Fixed Deposit of a Nationalised Bank. In addition, the Claimants shall file undertaking to the effect that they as well persons claiming through them shall bring back the amount withdrawn by them along with the interest, as may be decided by the Court at the appropriate stage, if the Appeal filed by the Insurance Company were to succeed. Compliance of the above two conditions is condition precedent for allowing the Applicants/Claimants to withdraw the amount. 6. Accordingly, Application is allowed. It is made clear that the Applicants/Claimants are entitled to withdraw the 50% amount deposited by the Insurance Company on giving Undertaking that they will reimburse 4 CAF.2462.10.sxw the amount with interest at 9% per annum, if the Appeal were to be decided against them as per the order dated November 6, 2009. The balance 50% amount shall be withdrawn on conditions specified by us in this order. 7. Application disposed of accordingly. (A.A.SAYED, J.) (A.M.KHANWILKAR, J.)