: 1 : USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.4370 OF 2009 IN SUMMARY SUIT NO.336 OF 2009 Ahmed M. Rowjee .. Plaintiff v/s. Sadruddin Hasan Daya & Ors. .. Defendants ......... Mr. Ahmed M. Rowjee plaintiff in person Mr. I.J. Nankani i/by M/s. Nankani & Associates for defendant nos. 1 to 3. ......... CORAM : R.Y.GANOO, J. DATE : 19TH APRIL, 2010. P.C. : 1. The plaintiff has taken out this notice of motion for the following reliefs. By prayer clause (a), plaintiff wants that the sum of Rs.4 lakhs deposited by the defendants should be paid to him. By prayer clause (b), plaintiff wants that additional sum of Rs.2 lakhs should be ordered to be paid to the plaintiff. By prayer clause (c), certain amendments in the plaint were sought. 2. A copy of the affidavit in reply filed by the defendant nos.1 to 3 was tendered in the Court. A copy of the same is already submitted to the : 2 : plaintiff in person. 3. By order dated 14th August, 2009 passed in Summons for Judgment No.90 of 2009, this Court had directed defendants to deposit Rs.4 lakhs within a period of 12 weeks from 14th October, 2009 to defend the suit. Certain other orders were passed regarding transfer of the suit to commercial causes etc. The plaintiff was granted liberty to apply for withdrawal. Pursuant to this liberty, the plaintiff has taken out this notice of motion. 4. I have heard plaintiff in person and learned advocate Mr. Nankani appearing for the defendants. The plaintiff wants to withdraw a sum of Rs.4 lakhs, which have been deposited by the defendants. The submission is fair, at the same time, question is in what way the plaintiff would secure this amount if he withdraws the same. 5. Learned Counsel appearing on behalf of the defendants submits that this Court while allowing the plaintiff to withdraw a particular amount deposited in the Court has to protect the interest of the person who has deposited the amount subject to the result of the suit. He submitted that in the present situation, the best method to secure the interest of the : 3 : defendants is calling upon the plaintiff to submit a bank guarantee of a nationalized bank to the tune of Rs.4 lakhs and that the bank guarantee must in the first place be issued for 5 years and that undertaking should be obtained from the plaintiff that he should renew the same from time to time till the disposal of the suit. After having considered the rival contentions, I am inclined to observe that the plaintiff can be permitted to withdraw a sum of Rs.4 lakhs, which has been deposited pursuant to the order passed in the Summons for Judgment and for that the plaintiff will have to give a bank guarantee of nationalized bank, which will be for the period 5 years and he will have to give undertaking that the bank guarantee will be renewed from time to tme. After tendering the bank guarantee and the undertaking as aforesaid, Office will pay the said amount of Rs.4 lakhs to the plaintiff. This is with reference to prayer clause (a). By prayer clause (b), plaintiff wants balance of Rs.2 lakhs, which are not deposited as there was no order to deposit. The principal claim is for Rs.6 lakhs. Certainly, the plaintiff cannot get whole of the principal amount but he can get at least the amount which has been deposited pursuant to the order passed in the Summons for Judgment. Hence, relief in terms of prayer clause (b) cannot be granted. 6. So far as prayer clause (c) is concerned, the plaintiff fairly submitted : 4 : to the Court that amendment has been carried out and, therefore, prayer clause (c) does not survive. 7. For the reasons mentioned aforesaid, the notice of motion is disposed of by passing following order. ORDER (i) Prayer clause (b) is rejected. (ii) Prayer clause (c) does not survive. Therefore, no order on prayer clause (c). (iii) So far as prayer clause (a) is concerned, plaintiff is permitted to withdraw a sum of Rs.4 lakhs, which has been deposited by the defendants on production of a bank guarantee issued by nationalized bank in the sum of Rs.4 lakhs and interest thereon @ 8% per annum, being a bank guarantee initially issued by the bank for a period of 5 years and undertaking given by the plaintiff that he shall keep bank guarantee alive from time to time. Upon submitting these two documents, the office shall pay a sum of Rs.4 lakhs to the plaintiff. No order as to costs. [R.Y.GANOO, J.]