1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2300 OF 2007 IN SUIT NO.1896 OF 2006 Samriti Chemicals Ltd. ...Plaintiffs Vs. Riverside Industries Ltd. ...Defendants Mr.V.Chandrashekhar i/b. N.S. Chareipelli for Plaintiffs Mr.Omar Khayam Shaikh i/b. Mishra & Co., for Defendants CORAM: SMT.ROSHAN DALVI, J. DATED: 27TH MARCH, 2008 P.C. 1. The Plaintiffs had initially filed a Company Petition. At the time of admission of the Petition a deposit of Rs.5 lakhs came to be made without prejudice to the rights and contentions of both the parties to the suit as per the order dated 27.03.2006. The Plaintiffs were directed to file a Suit. The amount was to be credited to that Suit. Plaintiffs filed the above Summary Suit and took out a Summons for Judgment. Unconditional leave has been granted to the Defendants to defend the Suit by an order dated 15.11.2006. 2. The Defendants now contend that since they have been 2 granted unconditional leave to defend the Suit the amount of Rs.5 lakhs already deposited should be returned to them. 3. This contention was not brought to the notice of the learned Judge who disposed off the Summons for Judgment. Prayer for withdrawal of the amount was not made. It could have been considered whilst the Judge considered the merits of the respective parties. 4. This application for withdrawal of the amount is on the premise that the Suit is primafacie seen to be for the amount at the foot of the accounts of the Plaintiffs and the Defendants have shown a substantial defence to the suit. 5. It can be seen that if an ordinary suit was filed, the amount would have remained to the credit of that suit pending the suit. It must be appreciated that whilst the parties would litigate in a suit, the Company Petition came to be disposed off without a winding up order. Merely because the Plaintiffs filed the summary suit in which unconditional leave has been granted, the order of this Court in the Company Petition dated 27.03.2006 cannot be modified. The amount which they deposited was to be as much in summary suit as in an ordinary suit. 3 6. Since the amount lies to the credit of the suit pursuant to the order passed in Company Petition and since the Defendant's company has not been directed to be wound up pursuant to that order, it would be improper to allow the Defendants to withdraw the amount so deposited. 7. The only equitable order that can be passed is for protecting that amount and for further investing the amount so that proper interest is earned thereon. Such interest would enure for the benefit of the party who would successfully contest the suit. Hence, the following order: O R D E R a) The amount of Rs.5 lakhs already deposited to the credit of the above suit as per the order dated 27.03.2006 in Company Petition No.586 of 2005 shall not be withdrawn by either of the parties pending the suit. b) The amount of Rs.5 lakhs already deposited and lying uninvested for the last one year shall be invested forthwith by the Prothonotory and Senior Master, High Court Bombay in any Nationalized Bank initially for a period of 37 months. 4 c) Notice of Motion disposed of accordingly. (SMT. ROSHAN DALVI, J.)