1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.1265 OF 2010 IN FIRST APPEAL NO. 739 OF 2010 Shri Aba Hariba Chavan. ....Applicant. Vs. Shri Satyanarayan P. Mandhane & Ors. ....Respondents Mr.Satyajeet M. Mirajkar for applicant. Mr.T.S.Ingale for Respondent Nos. 1 and 2. CORAM:- A.M.KHANWILKAR AND A.A.SAYED, JJ DATED:- JULY 6, 2010 P.C. 1. Heard Counsel for the parties. Appeal is admitted by separate order. Learned Counsel for the Applicant submits that there is serious dispute on the factum as to whether the applicant in fact received sum of Rs.9,51,000/- when the Agreement was executed. Even if that plea has been taken by the Applicant, at this stage, we have to reckon the findings recorded by the Court below on the appreciation of the evidence on record that the amount of Rs.9,51,000/- was paid as Earnest Money to the Applicant at the time of execution of the Agreement. The finding so recorded prima facie is substantiated from the Agreement Exh. 49 2 as also the oral evidence of Plaintiff’s witness Sunil Bedakkar. Prima facie, we also find substance in the argument of the Respondents that the Agreement Exh. 49 was executed by the Applicant in the presence of his two sons. The Applicant however, has not chosen to examine the said two sons as his witness to dispel the assertion of the Plaintiffs that sum of Rs.9,51,000/- was paid as earnest money at the time of execution of the agreement. However, the Applicant admits receipt of sum of Rs. 3,50,000/- as earnest money from the Respondents. Taking over all view of the matter, therefore we proceed to pass following order. 2. The Applicant shall deposit the amount of Rs.9,51,000/- as specified in Decree dated 2nd January, 2010 in this Court within six weeks from today, failing which the Office to treat this application as dismissed for non-prosecution without further reference to the Court. As a consequence the interim protection granted to the Applicant shall stand withdrawn. 3. However, if the amount, as aforesaid, is deposited in this Court within the specified time, the operation of the impugned Judgment and Decree shall remain stayed till the disposal of the appeal. 3 4. The Respondents/Decree holders would be free to withdraw the amount so deposited by the Applicant on condition that they would provide solvent security for the sum of Rs.6,01,000/-(Rs.Six Lakhs One thousand only) (since the Applicant has admitted receipt of Rs.3,50,000/-) and also file undertaking in this Court to the effect that in the event Court so directs, they would forthwith bring back the entire amount, so withdrawn and/or portion thereof, as may be directed, alongwith interest, if any. Subject to compliance of the above condition, the Respondents would be free to withdraw the amount deposited by the Applicant. 5. If the amount so deposited is not withdrawn within four weeks from the date of deposit, the Registry shall take steps to invest the said amount in appropriate fixed deposit scheme, which will be kept alive till the disposal of the appeal. 6. Application disposed of accordingly. (A.A.SAYED, J) (A.M.KHANWILKAR, J)