1 nms-2616-06-ss-2737-02 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi NOTICE OF MOTION NO. 2616 OF 2006 IN SUMMARY SUIT NO. 2737 OF 2002. M/s. ARC Surface & Tunnel Systems Pvt. Ltd. ..Plaintiffs. vs. Development Corporation of Konkan Ltd. ..Defendant. .... Mr. Piyush Shah, for Plaintiff. Mr. U.M. Mahajan, i/b. M/s. Divekar & Co., for Defendant. .... CORAM : S.J. KATHAWALLA, J. DATE : 14TH DECEMBER 2010. P.C. By this Notice of Motion, the Defendant seeks withdrawal of Rs.5,00,000/- deposited by it in this Court pursuant to the order dated 19th March 2003 along with accrued interest thereon, if any. 2. In the above Summary Suit, an ex-parte decree was passed on 11th December 2002 for a sum of Rs.40,75,000/-. Thereafter, the Defendant took out Notice of Motion No.903 of 2003 seeking setting aside of the said ex-parte decree. By an order dated 19th March 2003, the ex-parte decree dated 11th December 2002 was set aside subject to the Defendant depositing a sum of Rs.5,00,000/- with the Prothonotary and Senior Master of this Court. Thereafter, the Plaintiffs took out Summons for Judgment No.679 of 2003 in the above Suit. In the Summons for Judgment, unconditional leave was granted to the Defendant to defend the Suit. However, the learned 2 nms-2616-06-ss-2737-02 Judge whilst granting unconditional leave inter-alia recorded as under :- “8. In the light of the order passed on the summons for judgment, it would be open for defendants to apply for withdrawal of the amount deposited in this Court. Needless to state that such withdrawal would not prejudice the rights and contentions of plaintiffs and it will be open for plaintiffs to initiate appropriate proceedings to secure their claim. Mr. Divekar states that the defendant Corporation would not apply for withdrawal of the amount deposited in this Court for a period of six weeks to enable plaintiffs to take out appropriate proceedings or to challenge this order in higher Court.” 3. Admittedly, the said order dated 28th June 2005 was not impugned any further by the Plaintiffs. The Plaintiffs have not initiated any proceedings to secure their claim. The Plaintiffs have not filed a reply to oppose the present Notice of Motion. 4. In the circumstances, the Defendant is allowed to withdraw the said amount of Rs.5,00,000/- along with interest accrued thereon, if any. The Notice of Motion is therefore, allowed in terms of prayer clause (a). However, it is clarified that this order shall in no way prejudice the rights and contentions of the Plaintiffs at the time of the hearing of the Suit. 5. The Notice of Motion is accordingly, disposed of. [ S.J. KATHAWALLA, J. ]