1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO.8434 OF 2009 IN FIRST APPEAL NO.3808 OF 2008 Navnitkaur w/o Manjitsingh Dumda & others Applicants Versus Bhagwan s/o Kaduba Dhayade Respondent Mr.S.V.Gangapurwala, advocate for the applicants. Mr.M.K.Deshpande, advocate for Respondent. CORAM: R.M.BORDE, J. DATE : 18th September, 2009. P.C.: 1 It is contended by Shri Gangapurwala, learned Counsel for original defendants – applicants herein that during continuance of the suit, plaintiff was directed to deposit monthly amount of Rs.10,000/- in the trial Court. Out of the amount deposited, defendants were permitted to withdraw monthly amount of Rs.1650/-. The interim arrangement, which was made, was continued during pendency of the suit. 2 The suit presented by appellant-original plaintiff was in respect of specific performance of contract. The subject matter of dispute is shop premises, which is in possession of defendants. The defence of defendants was that deceased husband of defendant no.1 and father of defendants no.2 and 3 was partner of plaintiff and both of them were carrying on business jointly. Considering all relevant circumstances, interim arrangement was made by the trial Court directing the plaintiff to deposit an amount of Rs.10,000/- per month. While disposing of the suit, trial Court refused the relief claimed by plaintiff in respect of specific performance of contract. However, defendants are directed 2 to repay an amount of Rs.5,50,000/- to the plaintiff along with interest @ 6% p.a. from the date of order till realisation of the amount. Plaintiff is also directed to continue to deposit an amount of Rs.10,000/- per month in accordance with the interim arrangement made by virtue of order passed below Exhibit-5 during pendency of suit. Defendants are restrained from causing disturbance to the possession of plaintiff over the suit premises. 3 As against the decree passed by trial Court, it is stated, both parties – plaintiff and defendants have preferred appeals. While entertaining appeal filed by defendants, this Court has granted stay to the direction contained in para 3 of the decree passed by the trial Court on 27.06.2008 in respect of repayment of amount of Rs.5,50,000/- along with interest @ 6% p.a. 4 Defendants have prayed, by preferring instant application, to issue direction to the plaintiff to continue to deposit amount of Rs.10,000/- per month. It is contended that such an arrangement was continued in view of the order passed below Exhibit-5 by the trial Court. 5 The appellant – original plaintiff has opposed the prayer made by applicants – original defendants. It is contended that the trial Court has recorded a finding that the plaintiff is tenant in respect of the premises, so also, defence put up by defendants in respect of husband of defendant no.1, being parter in the business, has also been turned down by the trial Court. It is contended that in view of this, plaintiff may not be directed to continue to deposit amount of Rs.10,000/-. 6 Considering all the relevant circumstances and considering the finding recorded by trial Court, I am of the opinion that, as the trial Court has recorded a finding that plaintiff is tenant in respect of the suit premises, he shall 3 continue to deposit monthly amount of Rs.10,000/- for user and occupation of the suit premises. Plaintiff also shall be put to terms in respect of deposit of certain amount in this Court during pendency of appeal. 7 In this view of the matter, I deem it appropriate to direct the plaintiff to continue to deposit an amount of Rs.5000/- per month in this Court commencing from December 2009. The amount shall be deposited every month before 10 th day of each month. Out of the amount deposited by plaintiff, defendants shall be entitled to withdraw an amount of Rs.1650/- per month. The balance of amount shall be invested in fixed deposit, in any Nationalised Bank, at the end of every quarter. The amount shall remain invested in fixed deposit until disposal of the appeal. 8 It is pointed out by learned Counsel for appellant – original plaintiff that the plaintiff has continued to deposit amount of Rs.10,000/- in the trial Court during pendency of suit and amount so deposited, after considering withdrawal permitted in favour of defendants, comes to Rs.1,51,300/-. It is also stated that the defendants are entitled to withdraw an amount of Rs.23,750/- towards the amount receivable by defendants for user and occupation of the suit premises by the plaintiff. Defendants, as such, shall be permitted to withdraw an amount of Rs.23,750/- deposited in the trial Court. The trial Court is directed to transmit balance of amount to this Court and on receipt of said amount, Registrar of this Court is directed to invest the same in fixed deposit. The amount received from the trial Court, in pursuance to this order, shall remain invested in fixed deposit until disposal of the appeal. 9 Civil Application stands disposed of. (R.M.BORDE) JUDGE ******* adb/ca843409