IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.4069 of 2005 NOTICE OF MOTION NO.4069 of 2005 NOTICE OF MOTION NO.4069 of 2005 in in in SUMMONS FOR JUDGMENT NO.256 OF 2002. SUMMONS FOR JUDGMENT NO.256 OF 2002. SUMMONS FOR JUDGMENT NO.256 OF 2002. IN IN IN SUMMARY SUIT NO.4301 of 2001. SUMMARY SUIT NO.4301 of 2001. SUMMARY SUIT NO.4301 of 2001. Zubin N. Mistry ..Plaintiff versus Schett Glass India Pvt. Ltd. ..Defendants Mr.Mohan Bir Singh for the Plaintiff Mr.H.C.Toori/b. Cr. Bayley & Co. for the Defendant CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 5th December, 2008. DATED : 5th December, 2008. DATED : 5th December, 2008. P.C. 1. The plaintiff instituted ths summary suit and took out Summons for Judgment No.256 of 2002. In the said Summons for Judgment, this Court on 29.7.2003 while disposing off the Summons for Judgement directed defendants to deposit Rs.7,00,000/- as part of condition for defending the suit. That amount has been deposited by the defendants. The plaintiff has instituted this motion so as to have that amount withdrawn from the Court and have it with him. No affidavit in reply is filed by the defendants and they have chosen to oppose the motion on the strength of record. -2- 2. Learned Counsel for the plaintiff drew my attention to para 3 of the Order dated 29.7.2003. On reading the said Order he wanted this Court to hold that defendants have admitted the claim of the plaintiff to the extent of Rs.7,00,000/-. According to him this portion of the Order starting from "He further submits that the claim only for summary.... was admitted by the defendant under the e-mail dated 9.9.2000" should be interpreted to mean that the defendants have admitted their liability qua the plaintiff to the extent of Rs.7,00,000/-. It is on this count also applying provisions of Order XXXVII Rule 3 of CPC, Learned Counsel for the plaintiff wanted this Court to permit him to withdraw the amount of Rs.7,00,000/-. The Counsel for the defendant opposed the submission on the ground that the amount of Rs.7,00,000/- was ordered to be deposited by way of condition to defend the suit and the same cannot be handed over to the plaintiff till disposal of the suit as the defendants have already disputed the entire claim of the plaintiff and are interested in opposing the suit. 3. I have considered the rival submissions and -3- record. If this Court while disposing of the Summons for Judgment had held that the defendants had admitted part of the claim of the plaintiff, surely the Court would have passed decree for part amount. Perusal of judgment does not go to show any mention of this fact. Appreciating the Order in its proper perspective would go to show that sum of Rs.7,00,000/- was considered by the Court as an amount which should be deposited by the defendant for the purpose of contesting the suit and for the purpose of filing written statement. In my view, provisions of Order 37 Rule 3 of CPC which were relied upon by the plaintiff would not be of any assistance to the plaintiff in the peculiar facts and circumstancs of this case. 4. Reference to sub rule (v) of Rule 3 of Order XXXVII would not be applicable so far as this case is concerned because that proviso would have taken effect if the stand taken by the defendants before the Court starts with the admission of the part of the claim of plaintiff. In the present case, such is not the observation of the Court. Looking to the case from any angle, this is not a case where the plaintiff should be allowed to -4- withdraw the amount. In any case interest of both the parties is protected because the sum of Rs.7,00,000/- is ordered to be deposited with the nationalised bank as set out in para 7 of the Order under consideration. 5. No case is made out for grant of leave. For the aforesaid reasons, the motion is required to be dismissed. 6. In the peculiar facts and circmstances of the case, I am not inclined to saddle the plaintiff with costs of this motion. Hence the order. ORDER Motion is dismissed with no order as to costs. (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)