1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3170 OF 2009 IN SUIT NO.2185 OF 2009 IndusInd Bank Ltd. .. Plaintiff Versus Cosmos Bon Voyage & Forex Pvt.Ltd. & Ors. .. Defendants Mr.Rajesh Talekar i/b. K.Ashar & Co. for plaintiff Mr.S.P.Dubey for defendant No.1 Mr.Fazal Thaba i/b. P.Shivan Raju for defendant No.2 Ms.Deepa Kamath i/b. Annie Fernandes for defendant No.3. CORAM : S.C.DHARMADHIKARI, J. DATE : November 13, 2009. P.C.: 1] In a suit praying for decree against the first defendant in the sum of Rs.32,65,761.12, an application for interim injunction restraining third defendant from paying any sums to the first defendant and more particularly a sum of Rs.9,22,627/- which is stated to be lying with the defendant is preferred. 2] This interim relief is based on the basis that the plaintiff is a banking company. Defendant No.2 is Banker of defendant No.1 and defendant No.3 is client of plaintiff and maintaining current account with 2 the plaintiff. 3] The third defendant made a request in writing to the plaintiffs, requesting transfer of an amount of Rs.3,23,372.42 from its current account maintained with the plaintiff to enable the defendant No.1 to have a credit of that sum in their account, which is with defendant No.2. That is, in other words, the constituent of plaintiff i.e. Defendant No.3 operated this bank account and sought to pay through the said account aforementioned sum to the first defendant by crediting its account with its banker i.e. Defendant No.2. 4] However, it is contended on behalf of the plaintiff that their employee erroneously punched a figure by which instead of a sum of Rs. 3,23,372.42 being remitted, a sum of Rs.32,33,372.42 got remitted to the account of first defendant maintained with the second defendant. Fearing a claim from the third defendant, present suit has been filed. 5] From their own constituent, the plaintiffs are seeking a relief that it must not part with another sum of Rs.9 lakhs and odd as in the submission of the plaintiffs, there will be nothing with the parties, enabling them to satisfy the final decree. It is urged that the first defendant is not a sound business entity and, therefore, this is the sum which should be retained. 6] Reliance is placed upon the affidavit in support of this motion and the contents of the affidavit in reply tendered by third defendant. 3 7] Upon instructions from the third defendant, their Counsel makes a statement that presently, they have withheld a sum of Rs.9,22,627/- which is stated to be due and payable to the first defendant. She states that the third defendants has instructed her to make a statement that this sum will not be released till the hearing and final disposal of this suit. 8] At this stage, Counsel for first defendant states that the plaintiff and third defendant cannot enter into any arrangement by which the legitimate claim of the first defendant against distinct entity viz., third defendant is put in jeopardise. If such an order is passed or the statement accepted that would mean that even the first defendant’s rights to recover sums from third defendants are put to an end. 9] By appropriate clarifications, this aspect can be taken care of. Thus, while accepting the statements of the third defendant and passing an order in furtherance thereof, so also directing that the sum of Rs. 9,22,627/- should be disbursed to the first defendant till the final hearing and disposal of the suit, it can be clarified that this does not prevent the first defendant from proceeding in law, in their legal proceedings. The order passed today based on the statement of the third defendant would not prevent the first defendant from instituting and pursuing its claim against the third defendant and/or plaintiffs and all contentions and pleas in the sum shall remain unaffected by the present order. All contentions of the first defendant so also other parties in that behalf are kept open. 4 10] Motion is disposed of by directing that the third defendant shall not release the sum stipulated in prayer clauses (a) and (b) of the motion to the first defendant or remit in the account of first defendant with the second defendant, until hearing and final disposal of the suit. However, this is subject to the clarifications with regard to the rights of the first defendant as made above. However, there shall be no orders as to costs. (S.C.DHARMADHIKARI, J)