1 HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION. NOTICE OF MOTION NO.943/2009 IN SUIT NO.556/2009 Shapoorji Pallonji and Company Ltd. ..Plaintiff -VERSUS- Zenith Infotech Ltd. and another. ..Defendants ......... Mr.K.R.Belosey, Advocate for the Plaintiff. Mr.M.U.Pandey, Advocate for the Defendant No.1. .......... CORAM : A.P.DESHPANDE, J. DATED : 08th APRIL, 2009. P.C. : 1. Heard the learned counsel for the respective parties. 2. The Plaintiff has instituted the present money suit only for recovery of amount of Rs.43,87,913/-. The Plaintiff is a contractor who was engaged by the Defendant No.1 to construct a building known as Zenith House at Andheri. The work of construction was carried out sometime in the year 2004. The construction work was for a sum of Rs.2.65 Crores out of which an amount of Rs.2.25 Crores has been paid by the Defendant No.1. 3. By the present notice of motion, the Plaintiff is seeking to restrain the Defendant No.1 from dealing with the structure constructed by the Plaintiff in any manner whatsoever. 2 4. According to the learned counsel for the Plaintiff, if the Defendant No.1 disposes of the said property then there would not be any security for the Plaintiff to recover the amount for which the Plaintiff has filed the suit. 5. According to the Defendant No.1, the very fact that out of total sum of Rs.2.65 Crores, an amount of Rs.2.25 Crores is paid, the bonafides on the part of the Defendants are writ large. The submission is that there is bonafide dispute in regard to the claim made by the Plaintiff in the suit. According to the Defendant No.1, because of various defects and shortcomings noticed in the construction, the Plaintiff was informed by letter dated 07.07.2006 which is placed at Exhibit-G. Perusal of the same does reveal the grievance of the Defendant No.1 being put to the Plaintiff about purported shortcomings in the construction carried out by the Plaintiff. The record is perused only with a view to find out as to whether, refusal to pay the money by the Defendants has any basis or otherwise? It does appear that there exists a bonafide dispute to be adjudicated in regard to the claim for money made in the plaint. 6. What is to be seen is that the present suit is only for recovery of money and no property is subject matter of the suit which could be said to be in danger as is contemplated under Order-39 Rule- 1 of the Civil Procedure Code. If the Plaintiff wants to secure the amount, the remedy lies elsewhere. Moving of motion seeking temporary injunction with a view to secure the money by restraining 3 the Defendants from alienating or dealing with the property constructed by the Plaintiff would not be appropriate. The only averment that finds place in the affidavit in support of the notice of motion, which is said to be referable to Order-39 reads thus:- “Plaintiffs apprehend that in the present scenario of global economic recession the Defendants No.1 are on the verge of creating some encumbrance to defeat the ends of justice and to deprive the Plaintiffs of the fruits of any decree that is likely to be passed in their favour.” 7. The averment appears to be more referable to Order-38 Rule-5 then Order-39 Rule-1. In a money suit the relief prayed for by the Plaintiff in the present notice of motion is not capable of being granted. No question of irreparable loss can arise to the Plaintiff in the suit for recovery of money. Hence, the notice of motion fails to make out any prima facie case for grant of injunction and the same has to be dismissed. The Plaintiff has failed to make out the case that the balance of convenience lies in favour of the Plaintiff. 8. For the reasons recorded herein above, the notice of motion is dismissed. Liberty to apply for expedited hearing of the suit. JUDGE