1 (WP 4200 of 2011) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4200 OF 2011 Central Bank of India ...Petitioner Vs. The Vile Parle Prarthana CHSL ...Respondents ----- Mr.V.B.Naik i/b. Mr.Sameer Tendulkar for Petitioner Mr.Shoraz Rushomjee with Ms. Padmaja Dholakia i/b. Dholakia Law Asso. for Respondents. ----- CORAM: V.M. KANADE J. DATED: 21st June, 2011 P.C. 1. Heard the learned counsel appearing on behalf of the Petitioner and the Respondents. 2. The Petitioner -Central Bank of India, is aggrieved by an interim order passed by the Appellate Bench of the Small Causes Court dated 13.4.2011. By the said order, the Appellate Bench was pleased to permit the Respondents herein to withdraw Rs.2 crores from the amount which was deposited in the Court by the Petitioner Bank and the balance amount was directed to be invested in the Nationalized Bank. The request made by the Petitioner to get refund 50% amount deposited in the Court was not accepted. 2 (WP 4200 of 2011) 3. Brief facts are that the Respondents filed an application for eviction of the Petitioner Bank from the suit premises which were given on lease. A decree was passed in favour of the Respondents and further order was passed directing the Trial Court to hold an inquiry under Order 20 Rule 12 of CPC for deciding the mesne profits. The Court on an application, which was filed by the Respondents, held that Respondents were entitled to get mesne profits to the tune of Rs.3,32,71,875/-. In the execution proceedings, warrant of attachment was issued and when the said warrant was sought to be executed, the Petitioner Bank gave a banker’s cheque for the said amount and also gave a bank guarantee. The Petitioner Bank, thereafter, preferred an appeal against the order passed by the Trial Court. While granting stay to the execution of the decree passed by the Trial Court in the mesne profits application, the Appellate Bench has passed the impugned order. 4. It is submitted by the learned counsel appearing on behalf of the Petitioner Bank that if the bank succeeds in appeal, it will be difficult for the bank to recover the said amount and, therefore, the said order may be modified and the order directing the recovery of Rs.2 crores by the 3 (WP 4200 of 2011) Respondents may be set aside and further direction may be given permitting the Bank to withdraw the said amount. It is also submitted that the appeal be directed to be heard expeditiously on or before 15.7.2011 and therefore, no prejudice would be caused to the Society. 5. On the other hand, the learned counsel appearing on behalf of the Respondents- Society submitted that in fact, the amount which was deposited by the Bank and warrant of attachment was issued and prior to that the bank had refused to make the payment and had also challenged the order passed by the Trial Court and was only after the warrant of attachment was issued, and the amount, thereafter, was deposited, the appeal was filed on the next date. It was submitted that the Appellate Bench had given cogent reasons while passing the said order and, therefore, it was not necessary to interfere with the said order while exercising jurisdiction under Article 227 of the Constitution of India. 6. In my view, taking into consideration the peculiar facts and circumstances of the case, it would be appropriate if the Respondents-Society is directed to give a bank guarantee for an amount of Rs.60 lacs. With this direction, the order passed by the Lower Appellate 4 (WP 4200 of 2011) Court is confirmed. Writ Petition is disposed of. The Appellate Court shall decide the appeal expeditiously as directed. Undertaking given by the Respondents in the Trial Court to continue. (V.M. KANADE J.)