1 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORIDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 12 OF 2010 IN NOTICE OF MOTION NO. 943 OF 2009 IN SUIT NO. 556 OF 2009 WITH NOTICE OF MOTION NO. 235 OF 2010 M/s. Shapoorji Pallonji & Co. Ltd. .. Appellant Vs. 1. M/s. Zenith Infotech Ltd. and anr. .. Respondents Mr. K.R. Belosay for appellant. Mr. M.U. Pandey for respondents. CORAM: B. H. MARLAPALLE & C. L. PANGARKAR, JJ. January 27, 2010. P.C. 1. We have heard Mr. Belosay, the learned counsel for the appellant – plaintiff. Suit No. 556 of 2009 has been instituted by the plaintiff for the recovery of Rs.43,87,913/- and in the said suit Notice of Motion No. 943 of 2009 came to be taken out praying for (a) directions to deposit part or full 2 amount under recovery and (b) an injunction not to create third party interest during the pendency of the suit. By the impugned order dated 8/4/2009, the Notice of Motion has been dismissed. 2. Admittedly, the plaintiff is a contractor and was engaged as such by the defendant no.1 to construct a building known as “Zenith House” at Andheri. A contract value was Rs.2.65 crores and as per the plaintiff the construction work is completed some times in 2004. Out of the total amount of Rs.2.65 crores , the plaintiff has received an amount of Rs.2.25 corers and hence for the balance amount the suit has been filed for its recovery. The learned trial Judge noted that the averments made in the application, claimed to have been filed under Order 39 Rule 1, were referable to the scheme of Order 38 Rule 5 of C.P.C. It was also noted that the suit was only for the recovery of an amount of Rs.43,87,913/- and at the same time, the claim was disputed by the defendant. It was noted that the dispute with regard to the claim appeared to be bona fide, more particularly on the points of defects and shortcomings as pointed out by the letter dated 7/7/2006 (Exh. G) addressed by the defendant no.1. 3. We, therefore, do not find any error in the impugned interlocutory 3 order so as to cause interference in this appeal. Hence, the appeal fails and the same is hereby dismissed in limine. 4. Notice of Motion No. 235 of 2010 does not survive and same shall stand disposed as such. (C. L. PANGARKAR, J.) (B. H. MARLAPALLE, J.)