1 wp3973.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No. 3973 of 2010 Puria Industriail Packaging Limited ... Petitioner v/s. The Municipal Corporation of Greater Mumbai & ors. ... Respondents Mr. Atul Singh i/b. D.R. Shah for the petitioner. Mr. M.M. Malvankar i/b. R.A. Malvankar for respondent no.1. Mr. S.K. Punder for respondent no. 11. CORAM:- B.R. GAVAI, J DATED :- MARCH 21, 2011. P.C. Learned Counsel for the petitioner seeks liberty to delete respondents 2 – 10 and 12. Liberty granted at the risk of the petitioner. Necessary steps be taken forthwith. 2. Rule. Rule made returnable forthwith. Heard by consent. 3. By way of present petition, the petitioner challenges the order dated 2 wp3973.10.sxw 30th January, 2010 vide which the learned Judge has disposed of Notice of Motion No. 1410/2009 filed by the present petitioner and directed the Registrar to refund the amount of Rs. 10 lacs to the plaintiff within four weeks. The petitioner-plaintiff has also been permitted to withdraw the suit. 4. The plaintiff has filed suit for declaration that plan sanctioned by defendant no. 1 and I.O.D. issued by defendant no.1 are valid and binding on the defendant no. 1. The plaintiff had prayed for direction to the defendant no. 1 to issue commencement certificate. An order of injunction was also sought restraining the Corporation from granting commencement certificate in favour of defendants 2-4. 5. In the interlocutory proceedings in the said suit, an order came to be passed on 6th May, 1989 directing the plaintiff to contribute the construction cost at the rate of Rs. 650/- per sq. feet subject to final cost of construction. As per the said order, the plaintiff was required to deposit an amount of Rs. 45 lacs. Vide the said order the defendant nos. 2-20 were permitted to withdraw an amount of Rs. 10 lacs deposited in the Court subject to the certificate from the Architect about the cost of construction in proportion to the contribution of the plaintiff. Being aggrieved by the said order, the 3 wp3973.10.sxw plaintiff had filed an Appeal from Order No. 519/1999 before this Court. This Court directed the plaintiff to deposit Rs. 12 lacs before the City Civil Court. Accordingly, an amount of Rs. 10 lacs was deposited on 12th December, 1997 with the Registry of the City Civil Court. In the said Appeal from Order No. 519/1999 alongwith Civil Application No. 1148/2009 filed on11th September, 2009 it was contended by the plaintiffs that they had themselves carried out the repairs and, therefore, the suit has become infructuous. It was contended that only question that remained was regarding refund of an amount of Rs. 10 lacs. The Appeal from Order, therefore, came to be disposed of with liberty to the present petitioners to apply for withdrawal of suit and refund of deposit. In pursuance thereof, Notice of Motion No. 1410/2009 was filed. Insofar as prayer of the present petitioners for withdrawal of the suit is concerned, the same was not contested but it was submitted before the Court that this withdrawal of the suit should be subject to the heavy cost. The Respondent No. 11 herein who is defendant no. 19, however, resisted the claim of refund of Rs. 10 lacs on the ground that said defendant had incurred an amount of Rs. 16 lacs for repair of the premises and as such defendant no. 19 was entitled to receive the said amount. Insofar as the contention of the present respondent no. 11/defendant no. 19 for permission to withdraw the deposit 4 wp3973.10.sxw is concerned, the learned trial Court did not find merit with the same. However, the learned trial Court specifically observed that if the defendant no. 19 desires to take out proceedings for recovery of cost incurred by him, it is open for him to do so. Learned trial Court, therefore, permitted withdrawal of the suit subject to cost of Rs. 25,000/-. Insofar as withdrawal of an amount of Rs. 10 lacs is concerned, the learned trial court permitted the same also. However, the learned trial Court observed that since there was no order of withdrawal of interest by this Court, the same cannot be granted. 6. I see no reasoning behind the order of the learned trial Court in refusing the petitioner to withdraw the interest accrued on the amount of Rs. 10 lacs when the learned trial Court himself has permitted withdrawal of amount of Rs. 10 lacs. In that view of the matter, I find that the petitioner would also be entitled to withdrawal of interest accrued on the aforesaid amount of Rs. 10/- lacs. 7. The Registry of the City Civil Court to permit the petitioner to withdraw the amount of interest accrued on the aforesaid amount of Rs. 10/- lacs in addition to the withdrawal of Rs. 10 lacs already granted by the 5 wp3973.10.sxw learned trial Court. However, in the facts of the present case the costs which are awarded to the defendant no. 19 of Rs. 25,000/- are increased to Rs. 50,000/-. The learned Counsel for the petitioner makes a statement that cost of Rs. 50,000/- which are awarded to defendant no. 19/respondent no. 11 herein would be paid to him by a crossed demand draft within a period of two weeks from today. (B.R. GAVAI, J)