1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR CIVIL APPLICATION NO.2180 OF 2010 IN FIRST APPEAL NO. 1046/2009 (Shri Birendra s/o Ramshankar Singh (Thakur) ..vs.. M/s Shreeji Constructions) ------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ------------------------------------------------------------------------------------------------------------------------------------ Shri H.D. Dangre, Advocate for the appellant, Shri C.V. Kale, Advocate for the respondent. CORAM:- J.P. DEVADHAR AND A.B. CHAUDHARI, JJ. DATED :- 12 th OCTOBER, 2010 1. This is an application for withdrawal of the amount of Rs.12,84,000/- deposited by the respondent in the trial Court on 30-06-2009. 2. In support of the application, Shri Kale, learned Counsel for the respondent, argued that the said amount is the balance consideration that was agreed to be paid for execution of the sale deed and in terms of the direction of the trial court the said amount was deposited in the trial Court. He submitted that since the appeal has been admitted by this Court and the interim order has been made staying the judgment and decree of the trial Court, the respondent should be allowed to withdraw the said amount. 3. Per contra, learned Counsel for the appellant submits that he 2 has no objection for withdrawal of the said amount but that should be allowed at the risk of the respondent. 4. We find that the respondent deposited the entire balance amount of Rs.12,84,000/- in the trial Court as per the directions of the learned trial Court. Since the interim order has been made staying the judgment and decree of the trial Court, the amount deposited by the respondent is lying idle in the trial Court to the advantage of none. Since the amount belongs to the respondent and the respondent is not in possession of the property, it is unjust to help the said amount lying idle in the trial Court. Hence, protecting the rights of the respondent in the subject matter of the present appeal and the impugned judgment and decree, we allow the respondent to withdraw the said amount of Rs.12,84,000/- forthwith. 5. We have also heard learned Counsel for the rival parties on continuance of the interim relief in the present first appeal. We find that the appellant-defendant had admittedly accepted the earnest amount of Rs.1,11,000/-, but has retained the said amount with him. In our opinion, it will be proper to direct the appellant to deposit the said amount in this Court. Hence the stay order is confirmed subject to deposit of Rs.1,11,000/- in this Court within a period of four months. If the amount is deposited, the same shall be invested in the Nationalized Bank as per the standing orders. It is 3 made clear that the respondent shall not be allowed to withdraw the said amount. In case the appellant does not deposit the said amount within stipulated period, the interim order would stand automatically vacated without reference to the Court. JUDGE JUDGE pma