: 1 : USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3506 OF 2009 IN SUIT NO.214 OF 2009 Hemali Pradeep Patel .. Plaintiff v/s. Bharat C. Patel & Ors. .. Defendants ........ Mr. Devang R. Sanghvi for plaintiff. Mr. M.A. Khan for defendant no.5. ........ CORAM : R.Y.GANOO, J. Dated : 15th March, 2010. P.C. : 1. By this motion, defendant no.5 wants an order that the plaintiff should repay to the defendant no.5 or deposit in the Court, a sum of Rs.4 lakhs. Affidavit in reply is filed. I have heard learned advocates on both the sides. It is seen that defendant no.5 had entered into an arrangement so as to purchase a suit flat from the plaintiff and defendant no.4. It : 2 : appears that parties wanted to file consent terms and obtain an order in regard to the suit flat and defendant no.5 in anticipation of the said consent terms being filed on record for obtaining the order, paid a sum of Rs.4 lakhs to the plaintiff. 2. According to defendant no.5, no settlement has taken place and plaintiff and defendant no.4 are trying to avoid final consent terms and, therefore, plaintiff should be directed to deposit in this Court a sum of Rs. 4 lakhs, which has been received by him. 3. At this juncture, I do not wish to go into the question as to whether the plaintiff has received a sum of Rs.4 lakhs from defendant no.5. Even if, the case of defendant no.5 is accepted as put up in the notice of motion, the fact remains that the said amount of Rs.4 lakhs was paid in anticipation of terms to be arrived at. In my view, if settlement has not taken place pursuant to certain developments, this Court cannot call upon the plaintiff to deposit a sum of Rs.4 lakhs. If at all defendant no.5 has paid certain amount to the plaintiff in anticipation of order to be obtained as per the consent terms, it may provide a separate cause of action to the plaintiff, for which plaintiff is free to institute appropriate proceedings in a Court of Law. Hence, Notice of Motion is required to be dismissed by : 3 : passing following order. ORDER (i) Notice of motion is dismissed. If defendant no.5 wants to institute proceedings against the plaintiff for recovery of Rs.4 lakhs, he is free to do so. It is clarified that this Court has not recorded the finding so as to accept the case of defendant no.5 that defendant no. 5 has paid a sum of Rs.4 lakhs to the plaintiff. (ii) In the facts and circumstances of the case, there shall be no order as to costs. (iii) Suit to come up on Board for direction on 31st March, 2010. [R.Y.GANOO, J.]