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1981 DIGILAW 441 (CAL)

Bhutoria Brothers (P. ) Ltd. v. Banwarilall Purushottam Dass

1981-12-24

ANIL KUMAR SEN, BHABES CHANDRA CHAKRABARTI

body1981
Judgment Sen, J. This is a revisional application at the instance of the defendant in a suit for declaration, permanent and mandatory injunction and damages. The revisional application is directed against an order dated July 29, 1981, passed by the learned District Judge, Howrah in Miscellaneous Appeal No. 19 of 1981 thereby affirming an order dated January 31, 1981, passed by the learned Munsif, 1st Court, Howrah, allowing the plaintiff's prayer for temporary mandatory for restoration of electric supply in the suit premises passed in Title Suit No. 298 of 1979. 2. The plaintiff is a lessee in respect of holding Nos. l30A and l30B, Dharamtala Street, Howrah, under a partnership firm, Chhotulal Jaharmul, being the proforma-defendant No. 4 in the aforesaid suit. According to the plaintiff they run a factory on the leasehold premises and for the said purpose were having electricity supplied through the defendant No.1, Bhutoria Brothers, another partnership firm running their factory at holding No. 130, Dharamtala Street under an agreement. They had not only shared security deposit with the Calcutta Electric Supply Corporation for the bulk supply of electricity through the defendant No.1, but they had been regularly paying for the electricity consumed by them which was limited to 94 H.P. The defendant No. 1 served a notice dated August 24, 1979, proposing to disconnect the supply of electricity on certain untenable grounds and when the plaintiff approached the defendant No. 1 they assured to reconsider their decision but suddenly on October 31, 1979, the defendant No. 1 disconnected the supply of electricity to the plaintiff. Such disconnection resulted in serious prejudice and irreparable loss to the plaintiff who at their factory had commitments to manufacture goods deliverable to national and international concerns. Hence, they instituted the aforesaid suit on November 20, 1979, and therein filed an application under Order 39, Rules 1 and 2 of the Code of Civil Procedure praying for immediate restoration of the supply of electricity pending the disposal of the suit. Such a prayer having been concurrently allowed by the two courts below, the defendant No.1 has preferred the present revisional application. 3. Mr. Dutt, appearing in support of this revisional application, has challenged the orders passed by the two Courts below on the ground that such an order is clearly unsustainable in law and no Court could have granted such an interim mandatory injunction as prayed for. 3. Mr. Dutt, appearing in support of this revisional application, has challenged the orders passed by the two Courts below on the ground that such an order is clearly unsustainable in law and no Court could have granted such an interim mandatory injunction as prayed for. According to Mr. Dutt even upon the plaintiff's own case the defendant No.1 committed a breach of their obligation under a contract when they disconnected electric supply with effect from October 31, 1979, and when such an obligation is not specifically enforceable the plaintiff is, at best, entitled to damages so that an order of mandatory injunction by way of enforcement of such an obligation is not sustainable in law. Secondly, it has been contended by Mr. Dutt that the power of a Court to grant an interim mandatory order is limited to restoration of things as they were on the date of the suit and nothing more. In the present case, according to Mr. Dutt disconnection having been effected on October 31, 1979, and the suit having been filed 20 days thereafter the Court could have no jurisdiction to direct restoration of the electric supply by an order of temporary mandatory injunction. 4. Both the points have been contested by Mr. Chatterji appearing on behalf of the plaintiff-opposite-party. According to Mr. Chatterji, the obligation of the defendant No. 1 to supply electricity to the plaintiff does not rest entirely on an agreement between the plaintiff and the defendant No. 1. Mr. Chatterji has drawn our attention to the materials appearing on the records of the suit to show that the defendant No. 1, obtaining bulk supply of electricity from the Calcutta Electric Supply Corporation were under an obligation to share the supply with other lessees like the plaintiff and the same stands in the way of the plaintiff getting any independent supply from the Calcutta Electric Supply Corporation. The obligation of the defendant No. 1 to supply electricity to the plaintiff arises from their own position of being the receiver of bulk supply from the Calcutta Electric Supply Corporation subject to the condition as aforesaid. Such being the position, according to Mr. Chatterji, the claim of the plaintiff cannot be said merely to be one based on breach of a contract with the plaintiff alone. So far as the second point raised by Mr. Dutt is concerned, it has been contended by Mr. Such being the position, according to Mr. Chatterji, the claim of the plaintiff cannot be said merely to be one based on breach of a contract with the plaintiff alone. So far as the second point raised by Mr. Dutt is concerned, it has been contended by Mr. Chatterji that the defendant No. 1 forestalled the suit by assuring the plaintiff after the notice that they would reconsider the position and when disconnection was effected obviously anticipating the suit and to forestall the same, the Court is entitled to grant a temporary mandatory order of injunction as prayed for. 5. We have carefully considered the rival contentions put forward before us. The dispute has come over to us not in any appeal but on a revisional application so that it would be for us to consider whether we should exercise our powers under section 115 of the Code for interfering with the concurrent orders passed by the two Courts below. At this stage of the suit it appears clear that the plaintiff had all along been having their electricity through the defendant No.1. For this, they had not only been paying for the electricity consumed but they were sharing with the defendant No. 1 incidental costs for the supply including the security deposit for the bulk supply with the Calcutta Electric Supply Corporation. The defendant No. 1 is a partnership firm, the effective partners whereof are the partners of proforma-defendant No. 4, lessors of the plaintiff. The defendant No. 1 obtained bulk supply from the Calcutta Electric Supply Corporation under a specific obligation that such supply should be shared between the defendant No. 1 and other lessees like the plaintiff. The notice of disconnection dated August 24, 1979, indicates that when the Government put a ceiling to the quantum of electricity to be consumed for industrial purposes, the defendant No. 1 instead of sharing the deduction along with others proposed to disconnect supplies to lessees like the plaintiff for their own benefit. In that light, the notice of disconnection was issued. But the fact remains that once supply to lessees like the plaintiff be disconnected they would not be entitled to any independent supply in view of the terms of supply with the defendant No. 1 by the Calcutta Electric Supply Corporation. In that light, the notice of disconnection was issued. But the fact remains that once supply to lessees like the plaintiff be disconnected they would not be entitled to any independent supply in view of the terms of supply with the defendant No. 1 by the Calcutta Electric Supply Corporation. If in such a situation the two Courts below had thought it right to grant restoration of the supply by an interim order of mandatory injunction we do not think that we should interfere with such an order. Whether the plaintiff's right to enforce such supply from the defendant No. 1 is entirely based on an agreement between the plaintiff and the defendant No. 1 and whether such an agreement could be specifically enforced or not, are issues awaiting decision in the suit and at this stage it cannot be said that the plaintiff's remedy being only in damages they are not entitled to claim restoration of the supply. 6. So far as the second point raised by Mr. Dutt is concerned, the concurrent finding of the two Courts below is that after the notice dated August 24, 1979, when the plaintiff approached the defendant No.1, the said defendant assured them to reconsider the stand. Such a case being accepted the necessary implication is that actual disconnection was effected anticipating the suit and forestalling any order that may be passed therein. In such a situation, the Court is entitled to grant mandatory interim injunction particularly when there can be no dispute that refusal thereof would mean irreparable loss and injury to the plaintiff. In a sense such an order in substance direct maintenance of status quo as on the date of the suit, the defendant having forestalled the suit itself. Incidentally Mr. Dutt had pointed out to us that since after the filing of the aforesaid suit the plaintiff had filed a suit against the Calcutta Electric Supply Corporation for an independent supply, being Title Suit No. 1 of 1981. In that suit, according to Mr. Dutt, the plaintiff had already obtained an order of injunction directing such supply. But it is not disputed now before us that such an order has been challenged and its operation stayed. As a matter of fact, the proforma-defendant No. 4 on their own application has sought to add themselves as a party to that suit to resist the supply. Dutt, the plaintiff had already obtained an order of injunction directing such supply. But it is not disputed now before us that such an order has been challenged and its operation stayed. As a matter of fact, the proforma-defendant No. 4 on their own application has sought to add themselves as a party to that suit to resist the supply. We have already pointed out that the effective partners of proforma-defendant No. 4 and the defendant No. 1 are the same and it is evident that they are trying to squeeze the plaintiff in a manner that they do not get the supply of electricity from any end. The order passed in Title Suit No.1 of 1981, if implemented, the defendant No. 1 in this suit would be at liberty to have the order of mandatory injunction against them vacated but the mere fact that the plaintiff obtained an independent order in Title Suit No. 1 of 1981 which is yet to be implemented can be no ground for allowing the present revisional application. In the result, we feel disinclined to interfere with the concurrent orders passed by the two Courts below. The revisional application, therefore, fails and is dismissed. There will be no order as to costs. Chakrabarti, J.: I agree.