1 fast23909-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION rpa FIRST APPEAL ST. NO.23909 OF 2010 ALONGWITH CIVIL APPLICATION NO. 3588 OF 2010 Sakharam Ganpat Pisal & Anr. .. Appellants V/s. Manish Yogesh Maniar & Anr. .. Respondents ..... Mr. Mayuresh Modgi for the appellants. Mr. A. S. Ghadge i/b. Mr. A. S. Desai for for respondent No.1. Mr. Dilip Bodke for respondent No.2. ..... CORAM : A. S. OKA, J. DATE : MARCH 31, 2011. P.C.:- Admit. 2. Advocates for respondent Nos. 1 and 2 waives service. 3. The appellants are the second and third defendants in the suit filed by the first respondent. The second respondent is the original first defendant. The trial Court has passed a decree against the 2 fast23909-10 appellants and the second respondent in the sum of Rs.2,66,000/- with interest on the principal amount of Rs.1,80,000/- at the rate of 15% from the date of filing of the suit till payment. 4. In the affidavit cum undertaking filed by the second appellant for himself and on behalf of the first appellant, he has stated that a sum of Rs.1,14,959/- has been already deposited with the trial Court towards the decretal amount and balance amount of Rs.1,51,041/- shall be deposited within a period of 12 weeks from today. The appellants have given an undertaking to that effect. The submission of the learned counsel appearing for the appellants is that in view of the deposit of the amount and in view of the fact that the appellants were prevented from defending the suit, an order of remand may be passed. He states on instructions that he has no objection if the amount is withdrawn by the first respondent subject to first respondent filing an undertaking before the trial Court to restitute the amount with appropriate rate of interest, in the event, he fails in the suit. The learned counsel appearing for the first respondent has no objection for remanding the matter provided that the said respondent is permitted to withdraw the amount. 3 fast23909-10 5. Hence, the Appeal is disposed of by passing the following order : :: O R D E R :: i. The impugned Judgment and decree dated 5th March, 2009 passed by the 4th Joint Civil Judge, Thane, is quashed and set aside and Special Civil Suit No.564 of 2006 is restored to the file of the trial Court. ii. Parties are directed to appear before the Trial Court on 6th July, 2011 at 11.00 a.m. iii. The statements in the affidavit dated 23rd March, 2011 are accepted. The undertakings therein and in particular undertaking in paragraph No.6 thereof are accepted as undertaking of the appellants. iv. The first respondent is permitted to withdraw a sum of Rs.1,14,959/- which is already deposited and a 4 fast23909-10 sum of Rs.1,51,041/- which will be deposited by the second respondent and appellants subject to condition of filing an undertaking before the trial Court to restitute the said amount with interest at appropriate rate, in the event, the suit is dismissed. The undertaking of the first respondent shall also state that in the event the suit is decreed in part, necessary amount shall be restituted by him with appropriate interest. v. This order is subject to condition that the appellants will deposit a sum of Rs. 1,51,041/- with the trial Court within a period of 12 weeks from today. In the event the said amount is not deposited within stipulated time, this order will not operate and the impugned judgment and decree will stand. vi. It will be open for the appellants to cross examine the witness examined by the first respondent. It will be open for the first respondent to lead further evidence. 5 fast23909-10 It is obvious that even the appellants and the second respondent will be entitled to adduce evidence in support of their case. vii. All contentions of the parties on merits of the suit are expressly kept open. viii. The suit shall be decided as expeditiously as possible and preferably before the end of 2011. ix. Appeal is partly allowed in the above terms with no order as to costs. x. Civil Application No.3588 of 2010 does not survive and the same is disposed of. JUDGE