1 mss CAF+4267 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 4267 OF 2010 IN FIRST APPEAL NO. 1692 OF 2010 THANE MUNICIPAL CORPORATION .. PETITIONER Vs. M/s. ATLANTA INFRASTRUCTURE LTD. RESPONDENT WITH CIVIL APPLICATION (ST.) NO. 4717 OF 2011 IN FIRST APPEAL NO. 1692 OF 2010 M/s. ATLANTA INFRASTRUCTURE LTD. .. PETITIONER Vs. THANE MUNICIPAL CORPORATION .. RESPONDENT Mr. R. S. Apte i/b A. R. Pitale for petitioner and respondent in CA ST. No. 4717 of 2011 2 mss CAF+4267 Mr. Prachi Khandge i/b M. P. Vashi for respondent and petitioner in CA ST. 4717 of 2011. CORAM: SMT. RANJANA DESAI & RANJIT MORE, JJ. DATED : 23/2/2011 P.C.: The petitioner in Civil Application No. 4267 of 2010 is the original defendant in Special Civil Suit No. 117 of 2001 (“the said suit” for convenience) which was disposed of by learned 2nd Jt. Civil Judge, Senior Division, Thane, on 31/7/2010. The said suit was partly decreed. The respondent is the original plaintiff in the said suit. Civil Application (ST.) No. 4717 of 2011 is filed by the original plaintiff against the original defendant. Since both these civil applications are being disposed of by this common order, for the sake of convenience, the parties are referred to as per their description in the trial court. 2. Admittedly during the pendency of the said suit the trial court had directed the defendant to deposit an amount of Rs.36,54,000/- in the court. By order dated 1/1/2009 the trial court had permitted the plaintiff to withdraw the said amount on furnishing a bank guarantee for the said amount for a period of two years. The said order was challenged by the 3 mss CAF+4267 defendant in this court. By order dated 27/8/09 learned Single Judge of this court permitted the plaintiff to withdraw the amount of Rs.36,54,000/- subject to the furnishing of bank guarantee in the sum of Rs. 42 lakhs of any nationalized bank. Learned Single Judge directed that the bank guarantee shall be kept valid till disposal of the suit. Admittedly the amount deposited in the trial court has been withdrawn by the defendant after giving bank guarantee as ordered. 3. The instant appeal is filed by the defendant challenging the said judgment and decree. The defendant has taken out Civil Application No. 4267 of 2010 praying that the impugned judgment and decree be stayed. Admittedly the defendant has deposited the balance decretal amount in the trial court. The plaintiff has taken out Civil Application (ST.) No. 4717 of 2011 praying that the plaintiff may be permitted to withdraw the balance decretal amount deposited by the defendant, on the plaintiff giving bank guarantee. 4. We have heard learned counsel for the parties. In the circumstances of the case, in our opinion, the following order will meet the ends of justice; Civil Application No. 4267 of 2010 is made absolute in terms of 4 mss CAF+4267 prayer clause (a). The plaintiff can withdraw the balance decretal amount after furnishing bank guarantee of any nationalized bank in the said amount. That bank guarantee shall be kept alive till the disposal of the appeal and for four weeks thereafter. So far as the amount already withdrawn by the plaintiff is concerned, the plaintiff shall file a fresh bank guarantee of a nationalized bank in the said amount and the plaintiff shall keep it alive till the disposal of the appeal and for a period of four weeks thereafter. Both the civil applications are disposed of in the aforesaid terms. (SMT. RANJANA DESAI, J.) (RANJIT MORE, J.)