Lsp IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO. 562 of 2009 Pradeep Sadashiv Pavagi & ors. ...Petitioner V/s. R.S.Luth Education Trust & ors. ...Respondents Mr. A.A.Kumbhakoni, Sr. Counsel i/by T.D. Deshmukh for the petitioner. Mr. Surel S.Shah for the respondents. CORAM CORAM CORAM : A.M.KHANWILKAR,J. : A.M.KHANWILKAR,J. : A.M.KHANWILKAR,J. DATED DATED DATED : 22ND JANUARY, 2009 : 22ND JANUARY, 2009 : 22ND JANUARY, 2009 P.C. . Heard Counsel for the parties. The admitted fact is that this Court granted conditional leave to defend to the defendants on depositing Rs. 48,01,029/- within six weeks from the date of the order. That order has been confirmed by the Apex Court, however, the time to deposit was extended. It is not in dispute that the amount specified by this Court in the order dated 12th October, 2007 has already been deposited in full. According to the petitioner the order passed by this Court was questioned only by defendant no.1 and 3 before the Apex Court and was accepted obviously unconditionally by defendant no.2. 2. The argument though attractive is devoid of merits. 2 By no standards the defendant no.2 was obliged to independently pay amount of Rs. 48,01,029/- or for that matter the plaintiff was entitled to recover that amount from defendant no.2 alone on the assumption that leave to defend has not been granted to the said defendant no.2 and/or that defendant no.2 has not complied with the conditional leave to defend, having failed to contribute any amount to the deposit made by the defendants 1 & 3. 3. If the argument of the petitioner-plalintiff was to be accepted, it would result in a situation where inspite of having succeeded before this Court only in part, the plaintiff would become entitled to recover twice the amount specified by this Court. The fact that defendant no.2 has not contributed any amount, does not militate against the said defendant. The order passed by this Court obviously is only of granting conditional leave in favour of "all the defendants together" subject however to depositing only sum of Rs. 48,01,029/-. The order does not specify that each of the defendants should contribute for such deposit. It would have been a different matter if this Court were to direct defendant no.2 alone to deposit the entire amount of Rs. 48,01,029/- or require him to contribute for the 3 deposit. Only in that situation, the petitioner-plaintiff could have legitimately contended that defendant no.2 has failed to comply with the conditional leave and has thus exposed himself for being proceeded accordingly. The argument of the petitioner that the suit is founded on dishonoured cheque issued by defendant no.2 does not take the matter any further. The real cause of action is not with regard to dishonoured cheque as such, but the supply of steel to defendant no.1 of which defendant no.3 happens to be the Chairman. 4. Taking any view of the matter, no interference is warranted in exercise of writ jurisdiction. Counsel for the petitioner, however, relies on decision of the Apex Court in the case of State Bank of Saurashtra v/s. State Bank of Saurashtra v/s. State Bank of Saurashtra v/s. Ashit Ashit Ashit Shipping Services (P) Ltd. & anr. reported in Shipping Services (P) Ltd. & anr. reported in Shipping Services (P) Ltd. & anr. reported in (2002) (2002) (2002) 4 SCC 736 4 SCC 736 4 SCC 736 and in particular exposition in paragraph 17 thereof. The observations made by the Apex Court were in the context of fact situation of that case, where the leave to defend was granted only to appellants and not to 2nd respondent therein. In the present case, as observed earlier leave to defend has been granted to "all the defendants together" by this Court on condition that they would deposit the specified amount. That direction has already been complied with, which fact is not in dispute. 4 5. Accordingly, this petition fails. The same is dismissed. [A.M.KHANWILKAR,J.] [A.M.KHANWILKAR,J.] [A.M.KHANWILKAR,J.]