1 905-caf.3238.11 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 3238 OF 2011 IN FIRST APPEAL NO. 1541 OF 2011 Vijay Jayantilal Shah. ... Appellant Versus Pawan Ishwariprasad Shah. ... Respondent ----- Mr. R.D.Soni i/b Ram and Company for the Applicant. Mr. Anil S. Mishra for the Respondent. ----- CORAM : A.S.OKA, J. DATE : 24 th August, 2011. P.C. 1 Heard the learned counsel appearing for the parties. 2 The Applicant is the original defendant and the Respondent is the original plaintiff. A decree for specific performance of the suit agreement for sale has been passed by the trial Court. The case of the Respondent is that under the receipt dated 16 th March, 2007, he paid a sum of Rs.25,000/- in cash to the Applicant as earnest money for sale of the suit flat. The total consideration was allegedly agreed to be Rs.11,80,000/-. There is a finding recorded by the Trial Court that a sum of Rs.25,000/- was paid by the Respondent by way of 2 905-caf.3238.11 earnest money. The appeal has been admitted and therefore, the clauses (2) and (3) of the operative part of the impugned judgment and decree will have to be stayed subject to certain conditions. 3 At this stage, the learned counsel appearing for the Respondent states that as this Court is granting stay to the execution of the decree, the Respondent may be permitted to withdraw the balance consideration deposited by him in terms of the decree without prejudice to his rights and contentions in the appeal as the amount will unnecessarily remain deposited in the Court. 4 The appeal may remain pending in this Court atleast for a decade. Hence, the aforesaid request deserves to be accepted. 5 Hence, the application is disposed of by passing the following order: i. There will be interim stay of execution and operation of clauses (2) and (3) of the operative part of the impugned judgment and decree subject to condition that the Applicant shall not 3 905-caf.3238.11 create any third party rights in respect of the suit flat and shall not part with possession of the suit flat till the final disposal of the appeal ; ii. The Respondent has deposited balance consideration of Rs.11,55,000/- with the trial Court within a period of one month from the date of the passing of the impugned decree and thus, the Respondent has complied with his part of the impugned decree ; iii. Only on the ground that stay has been granted by this Court, the Respondent is permitted to withdraw the sum of Rs.11,55,000/- deposited by him with the trial Court. The withdrawal will be naturally without prejudice to the rights and contentions of the Respondent in the pending appeal ; and iv. It is made clear that after deposit of the amount as per the impugned decree, the prayer for withdrawal has been made only after stay has been granted by this Court and therefore, the 4 905-caf.3238.11 action of withdrawal of the amount shall not be treated as the failure of the Respondent to establish readiness and willingness. [ A.S.OKA, J ]