JUDGMENT K.K. Birla, J. - This appeal arises out an order dated 26-3-90 passed by the 3rd Additional Civil Judge, Ghaziabad rejecting the plaintiff's application for temporary injunction. 2. In brief, Central Bank of India (hereinafter referred as the Bank) gave financial facilities to the M/s. American Data Processing Centre, respondent no. 2 (hereinafter referred as the borrower) as Term loan to the tune of Rs. 11,35,000 and cash credit limit to the tune of Rs. 3,00,030. Necessary documents including the hypothecation agreement Annexure-1 to the supplementary affidavit, dated 29-4-86 and hypothecation letter of the same date Annexure-4 of the paper book were executed by the borrower through its sole proprietor with regard to the loan. Besides hypothecation, personal guarantee and the guarantee of guarantors was also given. The parties also got insured the concerned goods against fire etc., with the United India Insurance Company Limited, respondent no. 1 (hereinafter referred as the Insurance Company). There was one insurance to the extent of Rs. 60,00,000 with regard to the one BM system III model. The other policy was for Rs. 6,60,000 which has lapsed. The dispute relates to the Fire policy cover note dated 9-112'87 covering the risk upto Rs. 11,68,000 (Cover Note, Annexure-9 of the paper book). On the same date to the extent of the same amount another policy covering burglary etc. with regard to the same article was also taken. There was fire in the borrowers' factory on 6-4-88 resulting in the loss of all the goods etc. The Insurance claim was preferred for the same. The Insurance Company settled the claim relating to the Fire policy of Rs. 11,68,000 (hereinafter referred as the Policy under dispute) for Rs. 10,00,000. According to the bank/plaintiff a cheque was prepared in the name of the Bank and handed over to the borrower to he paid to the Bank. 3. According to the bank, under the agreement the bank was entitled to get this money towards the amount due from the borrower. But the borrower did not give the cheque to the Bank. Later on, the Borrower and the Insurance Company colluded and declined to give this amount to the Bank. On these allegations a suit for declaration that the Bank was entitled to the claim amount under the policy under dispute from the defendant no. But the borrower did not give the cheque to the Bank. Later on, the Borrower and the Insurance Company colluded and declined to give this amount to the Bank. On these allegations a suit for declaration that the Bank was entitled to the claim amount under the policy under dispute from the defendant no. 1 and for permanent injunction restraining the Insurance Company to make this payment to the borrower and also for deposit of this amount in the loan account of the borrower with the Bank at Wrightganj, Branch, Ghaziabad was filed. 4. An injunction application under Order XXXIX, Rules 1 and 2 and Section 151 Civil Procedure Code was also filed. This fire Insurance mainly covers six disk packs besides Air Conditioners etc. The case of the defendants was that the items covered under this policy were never hypothecated with the Bank, that unlike the other Insurance Policy the Bank was not a co-proposer of this policy. By mistake cover note and Insurance policy have been prepared jointly in the name of the Bank and the borrower. The bank was not entitled to any amount, there was no privity of contract between the Bank and the Insurance Company. It was further contended that the whole of the factory of the borrower had been burnt and the proprietor has to establish the business again. There is already another policy of Rs. 60,00,000 and as such the balance of convenience is not with the Bank nor the Bank is going to suffer any irreparable injury. It may be pointed out that there is no dispute that out of the claim of the Insurance policy of Rs. 60,00,000 the Insurance Company is willing to pay Rs. 23,00,000 to which the borrower is not agreeable and the matter for final settlement is still under consideration. 5. According to the learned Additional Civil Judge the Bank was not co-proposer. There is no privity of contract between the Bank and the Insurance Company. The Bank may recover the amount out of the claim of other policy and from the guarantors. Accordingly, he was of the opinion that the plaintiff did not have any prima facie case, neither the balance of convenience was in his favour nor the bank was likely to suffer irreparable injury. Accordingly, he dismissed the temporary injunction application. Being aggrieved, this appeal has been preferred. 6. Accordingly, he was of the opinion that the plaintiff did not have any prima facie case, neither the balance of convenience was in his favour nor the bank was likely to suffer irreparable injury. Accordingly, he dismissed the temporary injunction application. Being aggrieved, this appeal has been preferred. 6. The affidavits have been exchanged between the parties and the appeal is being disposed of finally. 7. We have heard the learned counsel for the parties at length and perused the material on record. 8. It is contended by the learned counsel for the appellant that on the material on record a prima facie case in favour of the Bank has been clearly made out and the trial Court has erred in finding otherwise. According to him the balance of convenience and the point regarding irreparable injury is also in favour of the Bank. On the other hand, the learned counsel of the borrower has stressed the points relied on by the trial Court and has contended that the order of the trial Court is correct. It is further contended that even if there is prima facie case in favour of the bank, the balance of convenience and the point of irreparable injury is in favour of the borrower and as such the appeal is without any force. It is also contended that unless the order of the trial Court suffer from infirmity, the appellate Court will not substitute the order of the trial Court by its own order. Reliance has been placed on the cases of Hazarat Surat Shah Urdu Educa ion Society v. Abdul Saheb, (1988) 2 AWC SC 1485 ; Hari Das v. Sahadat, AIR (1988) Cal 140 and Smt. Lallthakshi v. Sadashivappa, AIR (1984) Kar 74. There can be no dispute about these propositions of law. 9. From the material on record it is made out that in the proposal from (Annexure-3 of the counter-affidavit of the borrower) regarding the Fire Insurance Policy under consideration (hereinafter referred as the Insurance Policy) the name of proposer given is that of the borrower and the bank has not been shown as proposer. But the Cover note and the Insurance Policy is in favour of the bank also. In the Cover note Annexure-IX of the paper book there is mention of 'Subject to Agreed Bank Clause'. The cheque has been issued in the name of the bank. But the Cover note and the Insurance Policy is in favour of the bank also. In the Cover note Annexure-IX of the paper book there is mention of 'Subject to Agreed Bank Clause'. The cheque has been issued in the name of the bank. These documents certainly go in favour of the bank to show a prima facie case in its favour. The contention on behalf of the borrower is that as all the other proposal forms, Cover notes and the Insurance Policy were in favour of the bank as well, therefore, by mistake of the official of the Insurance Company, in the cover note and the Insurance Policy the name of the bank was also mentioned. The affidavits and the counter-affidavits in support of this contention and controverting the same have been filed by the parties. In our opinion, this is a matter which can be decided at the time of the final hearing of the suit when the parties lead evidence in this regard and the witnesses are subjected to cross-examination by the other side. In the Insurance Policy in dispute Six disk packs valuing Rs. 7,56,000 are also covered. According to the survey report at page 121 of the paper book they were purchased in September 1984. Thus they were purchased much before the advancement of the loan given by the bank and as such was not financed by the bank. But they were parts of the borrower's equipments and machinary etc. This Insurance Policy also includes Air Conditioners, Generators sets, etc. 10. One hypothecation agreement Ex Sa-1 attached to the supplementary affidavit was executed on 29-4 86 in which IBM system III model was hypothecated. On the same date a hypothecation letter (Annexure-4) was executed. This also relates to the same loan of Rs. 11,35,000. This Insurance Policy also includes Air Conditioners, Generators sets, etc. 10. One hypothecation agreement Ex Sa-1 attached to the supplementary affidavit was executed on 29-4 86 in which IBM system III model was hypothecated. On the same date a hypothecation letter (Annexure-4) was executed. This also relates to the same loan of Rs. 11,35,000. By para one of this letter the property mentioned in the schedule was shown as hypothecated goods and it included all the moveable machinery and spare parts etc, The description in the schedule is "all movable property comprising, inter alia Machinery Equipments, Plant and Spare parts, etc., which now or hereafter from time to time during this security shall belong to the borrowers wherever the same may be including in transit." In pars 5 of this letter it is provided that the borrowers shall keep insured all property constituting the Bank's security against fire and all other risks in a sum equivalent to its full market value in an office approved by the Bank in the joint names of the Bank ...... ". In para 5 of the affidavit along with the injunction application moved in this Court it was asserted that total Stocks of Plants and Machinery and other goods lying at the premises of the borrower has been hypothecated in favour of the Bank vide Annexure-4. In para 6 it is asserted that in pursuance of this hypothecation letter all the stocks Plant and Machinery etc. were insured against fire, burglary by the borrower and the Cover notes were handed over by the borrower to the bank in which the bank was also mentioned as insured. In para 12 of the counter-affidavit recital with regard to these parts have been made. In this case the claim of the bank with regard to the said six-disk only was challenged. The execution of the hypothecation letter was not specifically denied. As discussed above, prima facie these Diska and Air Conditioners etc. (insured goods) were part of the Plants, Machinery and the spare parts, At page 339 of the paper book is the copy of the letter dated 21st October, 1987 written by the insurance policy to the bank and the borrower In this letter the quotation for insurance against Six, disk packs and Air Conditioners etc. (the goods of the Insurance policy) was given. (the goods of the Insurance policy) was given. According to this, quotation of the premium for the Insurance for fire and Miscellaneous insurance were separately given. As pointed out above both these policies covered Fire and Burglary etc., were made on the same date. This shows that even before the proposal from dated 9-11-1987 for the disputed insurance, this letter had been written and formed part of the correspondence leading to the insurance. The fact that this letter was addressed to the bank as well as the borrower prima facie goes against the borrower's case that the bank had nothing to do with the insurance of these goods. The cover note and the Insurance policy is in favour of the bank as well. The insurance was taken in November, 1987. Fire took place in April, 1988. In the Survey report the bank is also shown as insured. This survey report is dated 16-12-1988. The claim was settled on the basis of the survey report and for the amount mentioned in the survey report. Enough time had passed from the date of the insurance till this date. As pointed out earlier even the cheque was prepared in the name of the bank. There is nothing on record to show that before the date of actual payment of amount arrived, the borrower raised any objection that the bank %as not insured and its name has been mentioned by mistake. This circumstance also goes in favour of the plaintiff/bank as far rs prima facie case is concerned. In view of the above discussions we are of the opinion that the bank has been able to show its prima facie case and merely on the basis of one fact that the borrower did not mention the name of the bank in the proposal form. It can be said that there is no privity of contract or that the bank had nothing to do with the Insurance Company or goods covered by it. The learned trial court had in fact considered the aspect of the prima facie case along with the balance of convenience and irreparable injury and had been wrongly much influence by the fact that there were other insurance policies and that there were guarantors as well. 11. The learned trial court had in fact considered the aspect of the prima facie case along with the balance of convenience and irreparable injury and had been wrongly much influence by the fact that there were other insurance policies and that there were guarantors as well. 11. It is also contended on behalf of the borrower that the loan has not become recoverable and as such there was no cause of' action for the suit and the suit itself was not maintainable. In our opinion this contention cannot be accepted at this stage as far as aspect of prima facie case of the plaintiff is concerned. It is a term loan. The loan was to be paid within 3 years with six monthly holiday period. In the hypothecation agreement Annexure SA-1 in paras 13 and 14 the terms of agreement the mode of payment is given. The loan was payable in equal instalments. The first instalment was repayable on 29th October, 1986 and the second instalment on 29th April, 1987. The consequences of default is provided under Para 14 which makes the whole amount payable in case of default. 'therefore, the fact that the bank had not taken steps to recover the loan will not be relevant for the purposes of prima facie case because admittedly no instalment towards the loan has yet been paid. In view of the above discussions, in our opinion the conclusion of the learned trial court with regard to this aspect cannot be maintained. 12. The aspect of balance of convenience and the irreparable injury is closely related and may be considered together. The contention on behalf of the appellant is that no instalment has yet been paid though more than 3 years have elapsed, the amount has already ruled to about Rs. 27 Lacs and is going to increase further, that no amount is readily available either from the insurance Company towards other policy or from the guarantors, that the money to which the bank is legally entitled and is available should not be lost, and that if the amount of the cheque is not kept in deposit for being available to the bank, this amount will be lost to the bank forever and the suit itself will become in fructuous. Therefore it was a fit case for grant of temporary injunction under Section 39, Rule 12 and/or under Section 151 C P.C. on the other hand, more stress has been laid on behalf of the borrower on the aspect that the balance of convenience is in favour of the borrower and no irreparable injury will be caused to the bank on account of the other Insurance policy and the guarantors. It is also stressed that the whole machinery and goods of the borrower have been destroyed by fire and in order to establish himself he needs money and the payment of money to him will enable him to purchase machinery, etc. and as such the balance of convenience is in his favour. These circumstances have weighed heavily in the mind of the trial court as well. 13. The suit bad been filed for declaration for the entitlement of this money. After institution of this suit, the bank had filed another suit for the recovery of about Rs. 27 lacs. The liability of the borrower is going to increase with the lapse of time on account of the interest due. As pointed out earlier, the Insurance Company is willing to pay Rs. 23,00,000 only for the Insurance claim of Rs. 60,00,000. Presently one does not know for what amount and at what time this claim will be settled. The amount presently being offered by the Insurance Company is less than the borrower's liability as claimed by the bank. Therefore, it cannot be said that on account of other Insurance policy the balance of convenience is not in favour of the bank as far as this case is concerned. No doubt, there are guarantors and the suit has been filed against then as well. It is common knowledge that the Civil litigation takes years to come to a final conclusion. As pointed out earlier, the borrower's liability is going to increase. If the bank is entitled to the money which is readily available to it, in our opinion it will be too much to hold that money may be lost to the bank on the ground that it had other remedies to recover the money. It has to be kept in mind that the recovery of money by those modes may take a long time. It has to be kept in mind that the recovery of money by those modes may take a long time. Therefore, it will be wrong to say that the balance of convenience is not in favour of the bank. It may also be pointed out that the question of balance of convenience and the irreparable injury should be considered with regard to the subject-matter of the suit. In this case the subject-matter of the suit is an amount of the cheque and entitlement of its money. If that money is going to be lost to the plaintiff, it cannot be said that the plaintiff/bank will not suffer irreparable injury vis-a-vis subject-matter of the suit. 14. On the facts and circumstances of the case, the proper order in the case should be one which could on the one hand safeguard the interest of the bank and on the other hand serve the interest of borrower whose machinery and goods have been destroyed by the fire. The interest of the bank can be served, if instead of the money being in deposit with the Court, the money may be utilised to purchase machinery etc., which may be available as security to the bank till this suit is finally decided. In this manner this amount may be secured as far as the bank is concerned and the borrower may also get the opportunity to start his business and to establish himself. Para 5 of the hypothecation letter (Annexure-IV) also contemplates the reinstating the security from the money realised from such insurance. Though, during the arguments it has been contended on behalf of the respondent that the bank was not entitled to this amount and the borrower should get the money of the cheque without any condition, yet it appears that the borrower was aware of the difficulty in its way. In para 8 of the counter-affidavit filed by Shri J. Sirohi, sole proprietor of the borrower, it has been mentioned that - "In case the deponent does not receive the insurance amount, he would not be able to restart his business and the deponent would have to remain Idle in the business without any capital in his band. In para 8 of the counter-affidavit filed by Shri J. Sirohi, sole proprietor of the borrower, it has been mentioned that - "In case the deponent does not receive the insurance amount, he would not be able to restart his business and the deponent would have to remain Idle in the business without any capital in his band. In case the insurance money is given to the deponent then he would be able to purchase fresh machineries which can be used by him for the purpose of earning profit and the deponent undertakes that the same will be hypothecated in favour of the bank." 15. In view of the above discussions, we are of the opinion that the order of the learned trial court deserves to be set aside and on order in the light of the observations made above should be passed. It may be pointed out that the observations made in this judgment are for the purposes of the disposal of this appeal only. The insurance company has filed a counter affidavit stating that it will abide by the courts direction and has not taken side of either party. 16. The appeal is partly allowed. The order of the learned trial court is set aside. It is directed that the borrower defendant No. 2 may place the order for the purchase of the plant, machineries and goods etc. in accordance with the directions given hereinafter. It is directed that the Insurance Company respondent no. 1 shall pay the amount of the cheque along with the accured interest to the seller on such plant machineries and goods etc. being hypothecated in favour of the Bank, appellant under the Court's order the Insurance Company has deposited the amount in Fixed deposit by the Insurance Company. This hypothecation shall be subject to the result of t is suit. The appeal is disposed of accordingly. In the circumstance of the case, the parties will bear their own costs.