1 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. APPEAL NO. 171 OF 2009 IN NOTICE OF MOTION NO. 1222 OF 2006 IN SUIT NO. 1071 OF 2006 Pankaj Aluminium Industries Ltd. ..Appellant Vs. Bharat Aluminium Company Ltd. ..Respondent Mr. S.S. Shah i/by K.V. Aiyar & Associates for appellant. Mr. Chirag Balsara i/by K. Ashar and Co. for respondent. CORAM: B.H.MARLAPALLE & S.J.VAZIFDAR, JJ. July 02, 2009. P.C. 1. Heard Mr. Shah the learned counsel for the appellant-plaintiff. Mr. Chirag Balsara appears for the respondent – defendant. 2. Suit No. 1071 of 2006 has been filed for seeking a declaration that an amount of Rs.3,52,26,499/- was paid by the plaintiff towards the orders placed by it with the defendant and that the defendant is not entitled to appropriate the said amount or any other amount therefrom towards the dues, inter alia, from Anish Metals Pvt. Ltd. The plaintiff has sought specific performance by way of directions against the defendant to forthwith deliver 437.5 M/Tonnes of Aluminium goods and in the alternative sought an 2 order of direction to refund to the plaintiff the said amount of Rs.3,52,26,499/- along with interest at 18% from 30/1/2006 till the date of realization. In the said suit Notice of Motion No. 1222 of 2006 came to be filed and it has been dismissed by the impugned order dated 26/11/2008. The Notice of Motion prayed by way of interim relief directions to deposit the suit amount and thereafter permit the plaintiff to withdraw the same on such terms and conditions as the court may deem fit. The learned Single Judge noted that the suit filed was not a summary suit and the Notice of Motion is not an application for attachment before judgment. 3. The creditworthiness of the defendant was not doubted by the plaintiff and in addition the Notice of Motion was not under the provisions of Order 38 Rule 5 of C.P.C. Mr. Shah by relying upon the decision in the case of Manohar Lal Chopra vs. Rai Bahadur Rao Raja Seth Hiralal [AIR 1962 SC 527] submitted that the powers of the court as stated in C.P.C. are not exhaustive and the court has inherent powers to grant suitable relief even if such relief is not within the scope of the provisions of C.P.C. 4. We are satisfied that the reasoning set out by the learned Single Judge cannot be termed as erroneous so as to call for interference in the impugned order at our hands and the suit filed involves triable issues. 5. Hence, this appeal must fail at the threshold and the same is hereby dismissed. (S.J.VAZIFDAR,J.) (B.H.MARLAPALLE,J.) 3