IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.328 OF 2008 IN SUMMARY SUIT NO.1357 OF 2008 EFC Logistics India Pvt. Ltd. .... Plaintiff V/s. M/s.Jyoti Structures Ltd. .... Defendant Mr.Subodh B. Gokhale, for the plaintiff. Mr.Praveer Shetty i/by Res Legal, for the defendant. CORAM : D.G.KARNIK, J. DATED : 04th APRIL, 2009. P.C. 1. Heard the learned counsel for the parties. 2. The plaintiff has filed this suit for recovery of Rs.5,16,635/- being the principal amount due and interest thereon. According to the plaintiff, the accounts were settled and the dues are admitted by the defendant in the said settlement and therefore, the plaintiff is entitled to a judgment. 3. The defendant has filed affidavit-in-reply claiming leave to defend the suit. 4. Previously, the plaintiff had filed Company Petition No.615 of 2007 against the defendant in which the Company Court directed the defendant to deposit a sum of Rs.5,16,635/- as agreed between the parties 2 with a liberty to the plaintiff to file a suit for recovery and further granted with liberty to the defendant to make counter claim, if any, against the plaintiff. Accordingly, the amount has been deposited in Company Court and the said amount has been transferred to the suit account. In view of the deposit of the principal amount, in my view, leave to defend must be granted to the defendant. 5. As regards request of the plaintiff for permission to withdraw the amount, I have perused the defence of the defendant raised in the affidavit-in-reply. The defendant has contended that the plaintiff had over charged for the transport services during the period 2001 to September 2004 and on discovery of the said fact, the defendant has raised debit note for a sum of Rs.8,10,000/-. The defendant therefore, has a counter claim of Rs.8,10,000/-. Prima facie this counter claim appears to be barred by limitation as the over billing is alleged to be between the year 2001 and September 2004. In the circumstances, I am inclined to grant permission to the plaintiff to withdraw the money deposited in this Court subject to furnishing security. 6. In view of the deposit of a sum of Rs.5,16,635/- by the defendant, it is granted leave to defend the suit. The plaintiff is permitted to withdraw a sum deposited by the defendant by furnishing security to the 3 satisfaction of the Prothonotary and Senior Master. The suit shall stand transferred to the list of Commercial Causes. The defendant shall file written statement inclusive the counter claim, if any, within 10 weeks. Needless to say that the counter claim, if any, made by the defendant, shall be subject to the law of limitation. ( D.G.KARNIK, J. )