1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.913 OF 2008 IN SUIT NO.3989 OF 1998 Sam Exports .. Plaintiff Versus Hindustan Oil Mills & Anr. .. Defendants Mr.V.Joglekar with Ms.Payal Parikh i/b. M & M Legal Venture for plaintiff Mr.P.Sawant with Ms.Shweta Jaykar i/b. Khaitan & Jayakar for defendant No.1. CORAM : S.C.DHARMADHIKARI, J. DATE : 19th March 2009. P.C. . This is plaintiff’s notice of motion. The relief is that the amount which has been paid under the agreement Exh.B to the plaint be directed to be paid to the plaintiff or alternatively to deposit the same in Court. The sum is Rs.27 lakhs and the interest is restricted to 9% p.a. 2 2. Mr.Joglekar appearing for plaintiff submits that the suit is for specific performance of the agreement to hand over the industrial gala. However, the plaintiff has given up that relief of specific performance. He is now seeking monetary relief. Inviting my attention to prayer clause (d) of the plaint, Mr.Joglekar submits that the amount which is paid to the "Promoter" within the meaning of Maharashtra Ownership Flats must be returned by it with interest for failure to give possession within the specified time. There is failure to give possession and, therefore, the amount of Rs.27 lakhs cannot be retained. This relief is claimed in the motion on the basis of Order XXXIX Rule 10 read with section 8 of the Maharashtra Ownership Flats Act and the relevant provisions of the Trust Act, as Order XXXIX Rule 10 not only speaks of liability which is admitted but also of monies held in Trust. This is a money held in trust 3 and, therefore, must be directed to be returned. 2. In support of his submissions Mr.Joglekar has relied upon a Full Bench decision of the Allahabad High Court and the Judgements of Learned Single Judges of this Court, Delhi High Court and Calcutta High Court. He has also invited my attention to a judgement of the Division Bench of Madras High Court. 3. On the other hand Mr.Sawant appearing for defendant No.1 which is the contesting defendant, submits that the suit is filed in the year 1988 and after a period of 10 years an interlocutory relief virtually amounting to a decree is claimed. That relief cannot be granted because the suit claim proceeds on the basis that Exh.B is an Agreement within the meaning of the Ownership Flats Act. Proper reading of the same would indicate that that is not an Agreement as contemplated in law. Assuming it is so, it is 4 not Registered. Thirdly, there is a default committed by the plaintiff himself, inasmuch as the plaintiff failed to pay sums due under the Agreement from 1995 till 30th June 1997 which is the date stipulated for taking possession. He is in default of Rs.72 lakhs. In such circumstances, until and unless it is decided, after evidence is led, that the monies have been wrongfully retained, no relief can be granted in this motion. 4. Having perused this motion and the affidavits filed on record so also the plaint, it is apparent to me that the plaintiff has come to this Court seeking relief of refund of Rs.27 lakhs in the alternative. The alternative relief is claimed on the basis that the Court is unable to grant relief of specific performance. The refund of Rs.27 lakhs is claimed on the basis that the amount has been paid by the plaintiff as set out in para 5 of the plaint. However, after 5 payment of Rs.25 lakhs, the plaintiff enquired but defendant No.1 did not commence construction. There were assurances given that it would start the construction and, therefore, the plaintiff must start paying monthly instalment of Rs.3 lakhs. A cheque for Rs.2 lakhs was, therefore, forwarded by the plaintiffs, as set out in para 6 of the plaint. It is in these circumstances and alleging that there is failure or neglect to commence construction despite repeated requests that plaintiffs are entitled to seek refund. 5. Upon perusal of Exh.B it is apparent that the sum stipulated therein till 30th June 1997 is Rs.3 lakhs per month. Admittedly Rs.25 lakhs and further sum of Rs.2 lakhs alone are paid. The claim is not on the basis of any admitted position with regard to non commencement or non completion of construction. On the other hand defendant No.1 has alleged Default on the part of plaintiffs due to which, according to the first 6 defendant, the plaintiffs are not entitled to seek refund of this sum. This is not a case of a money held in trust prima facie. Whether the ingredients of Trust are satisfied or whether the sum is admitted sum or not is something which cannot be gone into and decided on affidavits. The suit will have to be tried and evidence must be led by plaintiff to prove the alternate claim. 6. I am not in agreement with Mr.Joglekar that there is no counter claim and, therefore, the relief claimed in the motion can be granted. That is not what is contemplated by Order XXXIX Rule 10. What the said provision contemplates is admitted liability at an interlocutory stage. What is permissible under Order XXXIX Rule 10 is a direction to deposit money in Court in a suit which is for money or some other thing capable of delivery and there is an admission that the money is held as Trustee for another party or that it belongs or due to another party. There is no 7 question of any counter claim being required to be filed for the purposes of denial of liability under Order XXXIX Rule 10. 7. This is not the stage where the Court must go into these facts or whether there is a Recession of contract and therefore, the monies are required to be returned as the defendants have held them in Trust. All these mattes must be gone into at the time of trial. 8. The motion is clearly misconceived and, therefore, not maintainable. It is accordingly dismissed without any order as to costs. (S.C.Dharmadhikari, J)