gopi 1 app-771-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY. ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.771 OF 2011 IN CHAMBER SUMMONS NO.741 OF 2011 IN SUIT NO.1961 OF 2003 Credence Property Developers Pvt. Ltd. & Ors...Petitioners V/s. Mehrunissa Mustafa Basalal Chaudhary & Ors.....Respondents. Mr.P.K.Samdani, Senior Advocate with Mr. Simil Purohit i/b. M/s.Wadia Ghandy & Co., for the Appellants. Mr. Jayesh Bhatt, for respondent No.1. CORAM: MOHIT S. SHAH, C.J., & MRS. ROSHAN DALVI, J. DATED : 9 December 2011. P.C. This appeal is directed against the order dated 16 September 2011 of the learned trial Judge of this Court disposing of the Chamber Summons No.741 of 2011 by which the learned trial Judge has given certain directions for working out the order dated 9 September 2010 which was passed by the Division Bench in the appeal which was filed by the plaintiff. The order dated 9 September 2010 reads as under:- “1. Admit. 2. Heard finally by consent of Appellant and Respondent gopi 2 app-771-11 Nos.30, 31 and 32. By consent of Appellant and Respondent Nos.30, 31 and 32, the order impugned in the appeal, i.e. Order dated 5.05.2010 passed in Notice of Motion No.1922 of 2003 in Suit No.1961 of 2003 is set aside. That Notice of Motion is disposed of in the following terms:- (i) On the Respondent Nos.30, 31 and 32 depositing in this Court an amount of Rs.5,00,00,000/- (Rupees Five Crores Only) with due intimation to the Appellant, all interim orders operating against Respondent Nos.30, 31 and 32 shall cease to operate. (ii) The Appellant shall be free to withdraw the amount deposited by Respondent Nos.30, 31 and 32, on furnishing bank guarantee to the satisfaction of the Prothonotary and Senior Master of this Court within a period of six weeks from the date of deposit. If the amount is not withdrawn within the aforesaid period, it shall be invested in fixed deposit in a nationalised bank to the credit of Suit No.1961 of 2003.” 2. The appellants/defendant Nos.30, 31 and 32 deposited the amount of Rs.5,00,00,000/- (Rupees Five Crores Only) with the Prothonotary & Senior Master and thereupon all interim orders operating against respondent Nos.30, 31 and 32 ceased to operate. Since the plaintiff was not in a position to give an unconditional bank guarantee without the plaintiff first depositing the amount of Rs. 5,00,00,000/- (Rupees Five Crores Only) with the bank, the plaintiff moved the Court for modification of the order for the limited purpose of enabling the plaintiff to obtain the bank guarantee with the amount gopi 3 app-771-11 which the appellants have already deposited. In the course of those proceedings, ultimately the learned trial Judge has passed the following order, which is impugned in the present appeal;- “1. The Plaintiff undertakes that she shall immediately upon receiving the amount of Rs.5 crores from the Prothonotary hand over the same to Bank of Baroda, Fort University Branch. The undertaking is accepted. 2. The statement of Mr. Palan, Senior Manager, Bank of Baroda, University Branch, Fort, that the Bank shall forthwith issue an unconditional Bank Guarantee in the sum of Rs.5 crores to the Prothonotary in view of the above undertaking of the Plaintiff, is accepted. 3. The Prothonotary shall upon receipt of the said unconditional Bank Guarantee from the bank and after being satisfied as regards the same accept the Bank Guarantee and issue a cheque of Rs.5 crores to the Plaintif.” 3. The learned counsel for the appellants/original defendant Nos.30, 31 and 32 submits that the plaintiff will withdraw the amount of Rs.5,00,00,000/- upon furnishing the bank guarantee, but thereafter if the plaintiff fails in the suit, the appellants will not be able to recover any interest on the amount Rs.5,00,00,000/-. Since the plaintiff is not first furnishing the bank guarantee, the plaintiff cannot be allowed to withdraw any amount, otherwise it amounts to plaintiff giving the bank guarantee with the amount already deposited by the appellants. gopi 4 app-771-11 4. The learned counsel for the plaintiff opposes the appeal and submits that the plaintiff has no objection if the cheque of Rs.5,00,00,000/- is handed over by the Prothonotary to the Bank of Baroda, University Branch, Fort and that the plaintiff will not get anything before first furnishing the bank guarantee. 5. Having heard the learned counsel for the parties, we are of the view that since the original order dated 9 September 2010 was passed by the Division Bench with consent of the parties and the order did contemplate that the plaintiff will have to give bank guarantee only of an amount of Rs.5,00,00,000/- and not for any interest amount, the impugned order passed by the learned trial Judge does not amount to variation of the said order dated 9 September 2010, more particularly when the plaintiff is not going to receive any amount directly from the Prothonotary, but agrees that the amount of Rs.5,00,00,000/- be paid by the Prothonotary directly to the Bank of Baroda, University Branch, Fort. 6. In the result, the appeal is dismissed, but with only one modification of direction No.(1) given by the learned trial Judge to the extent that the Prothonotary shall hand over the cheque of Rs.5,00,00,000/- (Rupees Five Crores Only) in favour of the Bank of Baroda, University Branch, Fort and the Bank of Baroda, University Branch, Fort will forthwith issue an unconditional bank guarantee for the sum of Rs.5,00,00,000/- (Rupees Five Crores Only). The direction No.(3) given by the learned trial Judge is maintained; that is to say that upon receipt of the unconditional bank guarantee from the Bank of Baroda and after being satisfied as regards gopi 5 app-771-11 the same, the Prothonotary shall accept the bank guarantee and issue a cheque of Rs.5,00,00,000/- (Rupees Five Crores Only) to the Senior Manager, Bank of Baroda, University Branch, Fort which cheque shall be drawn in favour of Bank of Baroda. CHIEF JUSTICE (MRS. ROSHAN DALVI, J.)