1 caf1547.10 ast IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 1547 OF 2010 IN FIRST APPEAL NO.610 OF 2010 The Executive Engineer, Medium Project Division No.1 & Ors. ....Applicants. Vs. M/s. Bhagyalaxmi Construction and Engineering Co.& Anr. ....Respondents Mr.Vijay D. Patil for applicants. Mr. C.G.Gavnekar for Respondent No.1. CORAM:- A.M.KHANWILKAR AND A.A.SAYED, JJ DATED:- JULY 26, 2010 P.C. 1. Heard Counsel for the parties. By this application, the appellants pray for stay of operation of the impugned Judgment and Decree. It is not in dispute that the appeal is already admitted. Besides, as ordered earlier, the appellants have deposited the decretal amount of Rs.40,76,360/-. In that sense, the Appellants are entitled for grant of interim relief, as prayed. Accordingly, this application ought to succeed in terms of prayer clause 7(a). 2 caf1547.10 2. The next question is: whether the amount deposited by the Appellants should be invested in fixed deposit scheme or allowed to be withdrawn by the Respondent No.1. Counsel for the Respondent No.1 submits that the Respondent No.1 be permitted to withdraw the amount on furnishing Bank Guarantee commensurate with the amount, as deposited. According to the Respondent No.1, the trial Court has answered the issue No.3(in part), 6 and 9 in favour of the Respondent No.1 in respect of the work which has been actually executed by the Respondent No.1 on site. According to the Respondent No.1, to that extent, the Respondent No.1 would be in any case, entitled for recovery of that amount. Aggregate of that amount comes to Rs.12,30,000/-. With regard to the balance amount, the Respondent No.1 is willing to furnish Bank Guarantee. Besides, the Respondent No.1 is willing to furnish personal undertaking of the partners of the Respondent firm to the effect that in the event the Court were to so direct, the entire decretal amount or any part thereof, as would be directed by the Court would be brought back alongwith interest, if any, within a period of two weeks from the date of the order, so passed by this Court at the final hearing of the appeal. The undertaking shall also record that the said affiants and/or persons claiming through them would be liable to abide by the said undertaking. In view of the above, we proceed to pass following order. 3 caf1547.10 (i) Interim relief in terms of prayer clause 7(a) of the Application is granted, which shall continue during the pendency of the appeal. (ii)The Respondent No.1 is permitted to withdraw decretal amount deposited by the Appellants on furnishing Bank Guarantee on amount in excess of Rs.12,30,000/-. Besides furnishing Bank Guarantee, each of the partner of the Respondent No.1 partnership firm shall file personal undertaking(for the entire decretal amount withdrawn) on the above terms. The Registrar shall allow the Respondent No.1 to withdraw the amount only on being satisfied that both the conditions are complied with by the Respondent No.1. (iii)In the event the Respondent No.1 fails to withdraw the amount within six weeks from today, the Office shall take steps to invest the same in appropriate fixed deposit scheme in a nationalised bank, which will enure during the pendency of the appeal. (iv)The Application disposed of on the above terms. (A.A.SAYED, J) (A.M.KHANWILKAR, J)