JUDGMENT
Lokeshwar Prasad, J.
1. This order shall govern the disposal of an Application (IA 3664/97), filed by the plaintiff under Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the CPC’), praying for the withdrawal of an amount of Rs. 5,11,700/-, deposited by defendant No. 1 in pursuance of order dated the 18th March, 1997.
2. The facts, relevant for the disposal of the above mentioned application, lie in a narrow compass. The plaintiff Company has filed the present suit ( Suit No. 1479/96) for the recovery of Rs. 12,09,013/- against the defendants, named above, being the amount due and payable to the plaintiff Company by the defendants jointly and severally as charges for the publication of the advertisement of defendantNo. 1 in its (plaintiff’s) magazines, published by the plaintiff on Computers and Information Technology.
3. The claim of the plaintiff, in the present suit, has been resisted by defendants 2 and 3 who have filed a joint written statement/counter claim. In the written statement/counter claim filed jointly, on behalf of defendants 2 and 3, it is inter-alia contented that there is no privity of contract between the plaintiff and the defendant No. 1 and that defendants 2 and 3 were exclusively dealing with defendant No. 1 and that the above said defendants had released the advertisements in question to the plaintiff on behalf of defendant No. 1. It is further stated in the written statement/counter claim filed on behalf of the above said defendants that the plaintiff and defendant No. 1 hatched a conspiracy to oust defendants 2 and 3 as a result of which defendants 2 and 3 suffered heavy losses. It is contended that nothing is due and payable by defendants 2 and 3 to the plaintiff. The above said defendants have preferred a counter claim of Rs. seven lakhs against the plaintiff on account of damages with pendents lite and future interest @ 24 % per annum.
4. So far no written statement has been filed on behalf of defendant No. 1. However, an affidavit, dated the 30th October, 1996 duly signed and sworn by one Shri Subhash Bal, Chief Executive Officer of defendant No. 1 has filed on behalf of defendant No. 1 inter-alia stating therein that defendant No. 1 is ready and willing to deposit a sum of Rs. 5,11,740/- in this Court provided the said defendant gets a full and complete discharge from the plaintiff as well as from defendants 2 and 3 and the suit filed by the plaintiff is dismissed against defendant No. 1. In the above said affidavit, it is also stated that the suit against defendant No. 1 “is false and not maintainable and deserves to be dismissed with costs.
5. The learned predecessor of this Court on 18th March, 1997 directed that the amount of Rs. 5,11,740/- as per the willingness expressed by defendant No. 1, be deposited within two weeks and after the deposit of the above said amount, the issue with regard to the discharge of defendant No. 1 shall be considered. In compliance with the above orders of this Court a Bank Draft for Rs. 5,11,700/- was deposited by defendant No. 1 in the Registry of this Court on 7.4.1997. It is after the
deposit of the above said amount by defendant No. 1 that the plaintiff has filed the above mentioned Application (IA 3664/97) under Section 151, CPC with the prayer that the plaintiff be permitted to withdraw the above said amount of Ra. 5,11,700/- deposited by defendant No. 1 in this Court.
6. The prayer of the plaintiff, made vide above mentioned Application (IA 3664/97), for the withdrawal of the above amount, is being resisted by defendants 2 and 3 who have filed a detailed reply opposing the same. In the reply, filed on behalf of defendants 2 and 3, it is stated that the plaintiff has no right to claim the withdrawal of Rs. 5,11,700/- deposited by defendant No. 1 pursuant to the orders of this Court dated the 18th March, 1997 and that the above said defendants are entitled to withdraw the above said amount. In the reply, filed on behalf of defendants 2 and 3, it is again stated that the plaintiff has no privity of contract with defendant No. 1 and therefore the plaintiff cannot claim any amount from defendant No. 1. It is also stated that defendant No. 1 has illegally withheld more than 11,00,000/- of defendants 2 and 3 at the instigation of the plaintiff with the object to harass and malign defendants No. 2 and 3. It is also stated that the plaintiff is liable to pay damages to the extent of Rs. seven lakhs to defendants 2 and 3 for which a counter claim has been filed. In the reply filed on behalf of defendants 2 and 3, it is stated that the above said application of the plaintiff be rejected and the amount deposited by defendant No. 1 be ordered to be released in favour of defendants 2 and 3.
7. In so far as the above mentioned application is concerned I have heard the learned Counsel for the parties at length and have also carefully gone through the documents/material on record. As already stated the above said amount has been deposited by defendant No. 1 in the Registry of this Court in pursuance of order dated the 18th March, 1997, passed by the learned predecessor of this Court which reads as under:
“Seen the affidavit filed by the defendant No. 1 expressing his willingness to deposit a sum of Rs. 5,11,740/-. Let the said amount be deposited within two weeks. After deposit of the said amount, the issue with regard to the discharge of the defendant No. 1 shall be considered.
At the request of defendants No. 2 and 3, one last opportunity is being granted to file the written statement within three weeks, subject to payment of costs of Rs. 1,000/- to the plaintiff. Replication, if any, shall be filed before the next date.
List on 21.7.1998.”
8. From a perusal of the above order/it is apparent that the above said order, is based on the willingness of defendant No. 1 expressed by it in the affidavit, filed on behalf of defendant No. IV In the above said affidavit, filed on behalf of defendant No. 1 by Shri Subhash Bal, Chief Executive Officer of defendant-No. 1, no doubt it is stated that defendant No. 1 is ready and willing to deposit a sum of Rs. 5,11,740/- but the above said offer made on behalf of defendant No. 1 is not unconditional. On the contrary the same is subject to the condition that defendant No. 1 gets a full and complete discharge from plaintiff as well as from defendant Nos. 2 and 3 and on such payment being made the suit against defendant No. 1 is dismissed. The above said question relating to the discharge of defendant No. 1 on the deposit of the above said amount is yet to be considered by this Court in terms of the above said order dated the 18th March, 1997. Moreover, as already stated defendants 2 and 3 in their written statement have stated in clear cut terms that there is no privity of contract between defendant No. 1 and the plaintiff. Defendant Nos. 2 and 3 while filing written statement have also filed a counter claim, claiming damages to the extent of Rs. seven lakhs with pendente lite and future interest @ 24% per annum. The claim of the parties in the present proceedings including the plea of defendants 2 and 3 that there was no privity of contract between defendant No. 1 and plaintiff is yet to be adjudicated. The suit filed by the plaintiff is in the initial stages. Even issues have not been framed so far. In the presence of the above facts, the amount deposited by defendant No. 1 in pursuance of the orders of this Court dated the 18th March, 1997 cannot be permitted to be withdrawn by the plaintiff as prayed.
9. In view of the above discussion, the above mentioned application, filed by the plaintiff deserves to be rejected . Accordingly the same is dismissed with no order as to costs. However, with a view to protect the interest of the parties, it is directed that the amount of Rs. 5,11,700/- deposited by defendant No. 1 in pursuance of the directions of this Court dated the 18th March, 1997, be deposited in ‘fixed deposit’ with a Nationalised Bank initially for a period of one year forthwith so that the party who may ultimately be found to be entitled to the above amount may not loose interest of the above said amount
LA. stands disposed of in above terms.