:1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION NOTICE NOTICE NOTICE OF MOTION NO. 4939 OF 2007 OF MOTION NO. 4939 OF 2007 OF MOTION NO. 4939 OF 2007 IN IN IN SUMMARY SUMMARY SUMMARY SUIT NO. 2183 OF SUIT NO. 2183 OF SUIT NO. 2183 OF 2003 2003 2003 SKF India Ltd. ... Plaintiff. V/s. Banarasi Lal Madan. ... Defendant. Mr. Sachin Kudalkar i/b. Madekar & Co. for the Plaintiff. Mr. Tushar Bhavsar i/b. Manoj Bhatt for the Defendant. ..... CORAM CORAM CORAM : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. 22ND 22ND 22ND JANUARY 2009. JANUARY 2009. JANUARY 2009. P.C. P.C. P.C. : : : . This is a Notice of Motion filed by the Original Plaintiff for the following relief :- "(a) The Plaintiff be allowed to withdraw the sum of Rs.48,73,250.55 deposited by the Defendant in this Hon’ble Court together with interest accrued thereon from the date of deposit till payment on such terms and conditions as this Hon’ble Court may deem fit and proper." 2. It is stated that in the above Summary Suit, Summons for Judgment was moved. That Summons for Judgment No. 382 of 2004 was heard by the learned Single Judge on 26th September 2005 and he passed an order granting conditional leave to defend to the Defendant. :2: 3. The amount directed to be deposited was Rs.50 lakhs and time was given to do so. That order of learned Single Judge was challenged in Appeal. The Appeal was admitted and upon the interim application filed in the Appeal, this Court once again passed a conditional order. 4. That conditional interim order in Appeal was challenged before the Supreme Court but the Special Leave Petition also came to be dismissed. 5. It is now stated that a sum of Rs.48,73,250.55 ps. is deposited with this Court. 6. As a result of the above proceedings and orders, the claim is that this amount may be allowed to be withdrawn with accrued interest during the pendency of this Suit. 7. Order XXXVII of the C.P.C. is very clear. When the Suit is filed under this provision, the Court passes orders which enable it to impose conditions as are stipulated in Order XXXVII Rule 3 (Sub-Rules 5 and 6). 8. From a reading of the order passed by this Court, it is not apparent as to whether the Court has passed the order invoking 2nd proviso to Order XXXVII Rule 3 (Sub-Rule 5) or Rule 222 of the Bombay High Court, :3: Original Side Rules. In that sense, this is not a claim which is stated to be admitted. The Appeal is still pending. The conditional order was an interim order in the Appeal. 9. In these circumstances, and when the challenge to the order on the Summons for Judgment is still pending, it would not be fair, just and proper to grant the relief. Granting of this relief would mean that the Suit is decreed at this stage itself. When conditional leave to defend the Suit is granted and that order is impugned in the Appeal, such directions and more particularly as sought by the Plaintiffs, cannot be issued More particularly, in the facts of this case. The Motion is, therefore, misconceived and is dismissed. No costs. (S.C. (S.C. (S.C. DHARMADHIKARI,J.) DHARMADHIKARI,J.) DHARMADHIKARI,J.)