H. P. M. C. v. S. P. I. BEVERAGES — 1993 DIGILAW 142 (HP)

JUDGMENT D. P. Sood, J.—The Himachal Pradesh Horticultural Produce Marketing and Processing Corporation (H.P.M.C) is the plaintiff and M/s. S. P. I. Beverages (Pvt) Ltd. is the defendant. They are hereinafter shortly referred to as the "plaintiff" and the "defendant" respectively. 2. On March 3C 1993, plaintiff filed this suit registered as Civil Suit No. 19 of 1993 under section 20 of the Arbitration Act (hereinafter shortly referred to as the Act), for reference of the dispute to the Arbitrator under Clause XXVI of the lease deed dated 8-1-1993 to the arbitration of Secretary (Law) to the Government of Himachal Pradesh as the sole arbitrator. 3. The plaintiff had leased out the plant to the defendant for a period of five years at leasing money of Rs. 216 crores per annum from 1st September, 1992. Lease deed was executed on January 8, 1993. The defendant had agreed to abide by the terms of the lease deed. As per the contract, the staff employed by the plaintiff at the aforesaid fruit processing plant located at Parwanoo were taken over by the defendant on foreign service. Thus, apart from the lease money, electricity and water charges and wages of the staff were agreed to be borne by the defendants. It is averred that electricity and water connections of the defendant were disconnected in December, 1992 for non-payment of dues by the defendant. The plaintiff also allege that defendant had failed to pay the second and third instalment of the lease money, apart from the wages and salaries of the staff despite various letters dated 24-11-1992, 3-12-1992, 24-12-1992, 26-12-1992, 5-1-1993, 16-1-1993, 17-1-1993 and 17-2-1993. Thus, according to the plaintiff, a sum of Rs, 7,83,43,000 on account of various items including the salary of the staff for the months of September, November and December remained unpaid by the defendant to the plaintiff. 4. The defendant admitted the lease, as per the terms contained in the lease deed executed on its behalf in favour of the plaintiff and also the manufacturing of apple juice concentrate. 4. The defendant admitted the lease, as per the terms contained in the lease deed executed on its behalf in favour of the plaintiff and also the manufacturing of apple juice concentrate. However, it is contended that the defendant was not given the absolute functional autonomy and operation freedom over the fruit processing plant which created hindrance in the smooth, efficient and economical running of the plant, inasmuch as the plaintiff retained administrative control over its staff working at the plant and during the period, the staff remained with them, the plaintiff continued corresponding with them and issuing orders to them directly, despite knowing that the staff misbehaved, maltreated and even threatened the defendants and its Directors with physical violence, causing huge loss to them. It is contended that the various acts of omissions and commissions indulged in by the plaintiff gave a shape to vicious circle whereby hindrance was caused to export the material owned by them and for which it had a foreign export order alongwith the letter of credit. It is also contended that the belated execution of the lease deed in view of the liabilities created thereunder clearly brought out the oppressive and unconscionable nature of some of the terms and conditions under sections 19 and 23 of the Indian Contract Act as also the plaintiff being covered by Article 12 of the Constitution, the said terms and conditions of the lease deed are arbitrary, unfair, unreasonable and violative of Article 14 of the Constitution. It is then contended that 110 employees of the plaintiff working in the factory and on the rolls of the establishment were to be absorbed by the defendant as per the terms of the agreement. However, the plaintiff kept them (defendant) in total darkness inasmuch as departmental and/or police inquiries against some of the employees were already afoot and when the defendants as per Clause 9 asked the plaintiff for the transfer of these employees, complete silence was resorted to. Apart from it in view of the belated handing over of the plant, neither the plaintiff were entitled to the salary of the staff for the month of September nor for December onwards because of their acts and commissions nor even to the first or the second instalments. Apart from it in view of the belated handing over of the plant, neither the plaintiff were entitled to the salary of the staff for the month of September nor for December onwards because of their acts and commissions nor even to the first or the second instalments. As regards the water electricity and telephone bills, the defendants contend that because as the plaintiff were responsible for causing loss to the defendants and further obstructing them from exporting apple juice concentrate, plaintiffs are not entitled to any claim. Another contention raised by the defendants is with respect to the handing over of the plant in a defective running condition contrary to the terms of the agreement According to them, plaintiff neither got the defective parts repaired nor replaced, which resulted in huge loss of production and consequently financial losses. They also contend that the plaintiff realised a sum of Rs. 54 lacs from them. The possession of the plant was handed over to them on 30-9-1992 but they were forced to agree to execute the lease deed w.e f 1-9-1992 and as such excess amount of Rs. 18 lacs was recovered by the plaintiff. In addition the plea of the defendant is that the financial institutions which were approached by them, refused to advance any loan for want of lease deed the execution of which was delayed without any rhyme or reason by the plaintiff. Also, the defendant contends that apple juice concentrate weighing about 390 metric tonnes had been manufactured by them and they had procured customers for its sale. However, it was but for wrongful impediments created by the plaintiff and their staff that they could not export the same. Had it been allowed to be sold in normal course, the defendant would have been able to discharge fully its financial obligations to all concerned including the plaintiff. According to them the plaintiff cannot be allowed to take advantage of its own wrongful acts and then seek the relief that the disputes have arisen and they are referable to arbitration, particularly when defendant, though aggrieved has not given rise to any such dispute on its part. According to them the plaintiff cannot be allowed to take advantage of its own wrongful acts and then seek the relief that the disputes have arisen and they are referable to arbitration, particularly when defendant, though aggrieved has not given rise to any such dispute on its part. Thus in view of the pleas raised by the defendants, the plaintiffs are not entitled to claim the suit amount which is based on imaginary and wrong facts As per the totality of the pleas raised by the defendant, no dispute has arisen on account of defendant nor the dispute is referable to the arbitrator a 5. During the pendency of the aforesaid application various applications have been filed by the parties to the suit in addition to the Arbitration Act, 1940, Section 41(1)(b), Schedule II - Civil Procedure Code, 1908, Order 39 Rule 4 - Temporary injunction - Application for variation/modification - Locus standi of third party - Third party aggrieved by order of temporary injunction issued under the provisions of Section 41(1)(b) r/w Schedule II of the Act analogous to that of Order 39 CPC - Has locus-standi to move an application for the variation/modification of the same - High Court has jurisdiction to pass appropriate order. (Para 22) t applications filed by M/s. Indian Tobacco Company a stranger to he suit, (hereinafter shortly referred to as I T.C.), which are tabulated as under:- S.No. No. of application By whom filed Relief sought 1. O.M.P. 45 of 1993 Plaintiff that defendant be restrained from removing the apple juice concentrate, plant and machinery from the fruit processing plant in question. 2. O.M.P. 82 of 1993 under Order 39 Rules 1 and 2 C.P.C. Plaintiff seeking permission to restore electricity, water and telephone connections and to run the cold storage by them during the pendency of the case. 3. O. M. P. 148 of 1993 under Order 39 Rule 4 C P. C. I.T.C. for modification of order passed in O.M.P. No. 45 of 1993. 4. O. M. P. 171 of 1993 under section 41 of Arbitration Act. Defendant seeking interim directions to the effect that defendant be allowed free access to the premises to inspect the goods and documents lying therein. 5. O M. P. 228 of 1993 under section 41 of the Arbitration Act. Defendant Praying that all records belonging to them be handed over to them. 6. Defendant seeking interim directions to the effect that defendant be allowed free access to the premises to inspect the goods and documents lying therein. 5. O M. P. 228 of 1993 under section 41 of the Arbitration Act. Defendant Praying that all records belonging to them be handed over to them. 6. O. M. P. 229 of 1993 under Order 39 Rules 1 and 2 C.P.C. Plaintiff for seeking permission to sell the apple juice concentrate in question. 7. O. M. P. 230 of 1993 under section 41 of the Arbitration Act read with section 151 C.P.C. Defendant praying that records pertaining to their accounts having not been handed over, access be granted to them. 8. O. M. P. 239 of 1993. Defendant that plaintiff be restrained from alienating or encumbering or leasing the fruit processing plant in question. 9. O. M. P. ?64 of 1993 under section 41 of Arbitration Act read with section 151 C.P.C. Defendant for permission to sell the entire stock of apple juice concentrate in question. 10. 0 M. P 277 of 1993 under section 41 of the Arbitration Act read with Order 39 Rules 1 and 2 C.P.C. Defendant seeking direction that the future lease of the plant in question in favour of any other party, be stayed. 11. 0. M. P. 278 of 1993. LT.C. seeking amendment of the orders dated 30-4-1993 passed in O.M.P. 148 of 1993. 12. O. M. P. 279 of 1993. l.T.C seeking directions to the defendants to produce the original document of FC/J9and FC/20. 13. O. M. P. 281 of 1993 under section 151 CP.C read with section 41 of the Arbitration Act. Defendant seeking withdrawal of the admission made for the urgent interim relief. 14. O. M. P. 413 of 1993. Defendant seeking the clarification of the order dated 27th August, 1993 passed in Civil Suit No. 19 of 1993. Out of the above, the applications at Sr. Nos. 2, 4, 5 and 7 have already been disposed of. At this stage, it would be pertinent to detail that initially the defendant in reply to application at Sr. No, 1 (O.M.P. 45 of 1993) took a categorical stand that apple juice concentrate belonged to I.T.C. and not to it (defendant). Later on, it shifted the stand in reply to the application of I.T.C, shown at Sr. No. 3. 6. At this stage, it would be pertinent to detail that initially the defendant in reply to application at Sr. No, 1 (O.M.P. 45 of 1993) took a categorical stand that apple juice concentrate belonged to I.T.C. and not to it (defendant). Later on, it shifted the stand in reply to the application of I.T.C, shown at Sr. No. 3. 6. Alongwith the plaint, the plaintiff filed the aforesaid application at Sr. No 1 (O MP, 45 of 1993). Keeping in view the circumstances alleged and supported by the affidavit, an ex-parte interim relief was allowed by this Court vide its order dated March 5, 1993, which is to the following effect: "O.M.P, No. 45 of 1993: Heard. Notice of this application in the ordinary course, by registered post as also Dasti through the learned Counsel for the applicant/appellant, be issued for 26th March, 1993 In the meantime, the defendant is restrained from removing the concentrated apple juice, plant and machinery from the fruit processing plant at Parwanoo and the Cold-Storage. Learned Counsel for the applicant shall provide necessary copies of the application as also the help to the Registry in framing the notices etc. Dasti copy on usual terms," On March 26, 1993, learned Counsel for the defendant sought time to seek instructions from the defendant with respect to the furnishing of collateral security or otherwise in respect of the filing of the short reply to the said application and the interim stay granted on 5-3-1993 was directed to continue till further orders. Subsequently, plaintiff vide application at Sr. No. 2 (O.M.P. 82 of 1993) sought permission to restore electricity, water and telephone connection and to run the cold storage by them during the pendency of the case. This application was considered in the presence of the defendant and disposed of vide order dated March 30, 1993, which is to the following effect; "O.M.P. No. 82 of 1993: Learned Counsel for the defendant has given an undertaking that keeping in view the urgency with respect to the running of the Cold-Storage where the concentrated apple juice valuing worth more than one crore is lying, the defendant would be depositing the entire electricity charges, water charges and the re-connection charges with respect to electricity and water connections if necessitated, on or before 3rd of April, 1993. He has stated at the Bar that in case the above said undertaking is not complied with by the defendant-respondent, the plaintiff-applicant shall be at liberty to take steps for the running of the Cold-Storage by depositing electricity, water and re-connection charges after the said date. In case defendant-respondent deposits the demand draft on the said date as ordered above, the plaintiff-applicant shall extend its co-operation to the opposite party in getting the electricity and water connection restored. Apart from it, in the meantime the plaintiff shall also co-operate in the running of the Cold-Storage by issuing appropriate instructions to its staff. The plaintiff-applicant shall be at liberty to approach this Court at any time after the Cold-Storage starts running for seeking further relief with respect to the salaries etc. This order has been made simply to dispose of this application without prejudice to the rights of the parties and it shall not have any effect on the main case to be determined on merits. Dasti copy on usual terms". Before any final order could be passed on the main suit or on the interim application, I.T C. filed O M.P. No. 148 of 1993, seeking the vacation of the interim relief granted to the plaintiff on an application under Order 39 Rules I and 2 C.P.C- This application involves most controversial points raised by all the parties thereto. In the circumstances, I propose to decide this application in the first instance O M Ps. 45 and 148 of 1993 For the purpose of disposal of these applications a few additional facts are needed to be detailed : 7. The possession of the plant in question alongwith the building was handed over to the defendant on 30th of September, 1992. Subsequently, the defendant entered into another independent agreement dated October 28, 1992 (Annexure-B) with L T. C , whereby the latter undertook to supply apples to the defendant pursuant to the terms and conditions detailed therein. Under this agreement, defendant had simply undertook to process/convert raw apples into apple juice concentrate on the terms and conditions detailed in clause 5 thereof which provides for processing charges at the rate of Rs. 10,600 per metric tonnes of output. Under this agreement, defendant had simply undertook to process/convert raw apples into apple juice concentrate on the terms and conditions detailed in clause 5 thereof which provides for processing charges at the rate of Rs. 10,600 per metric tonnes of output. Further assertion of I. T. C. is that for the purpose of purchasing apples and delivering them to the defendant company for processing, it (I T. C.) also entered into a contract with another firm M/s Sohna Mal Inder Sain Chadda (hereinafter referred to as S.LC) for the procurement of apples for and on behalf of IT. C vide another agreement of the even date. It is also asserted that the apple juice concentrate so processed was agreed to be stored in separate tanks/containers to be designated by I. T C. in the cold storage of the plant in question The representative of I T. C, identified 14 tanks on which the stickers bearing the trade in the name of I. T. C. were pasted. According to I T. C, total amount paid to the defendant company amounted to Rs. 77, 64,824 63. It is alleged that in addition thereto, a sum of Rs 36, 13,368.77 was paid to S I. C. for the purpose of purchase of apples and supply thereof by the said firm to the defendant company for processing conversion into apple juice concentrate. 8. The relief in this application has been sought for on the following grounds j (a) that the I. T. C. are the absolute owners of the apple juice concentrate having paid the entire amount to the defendant who acknowledged the delivery of the said stocks to I. T. C. on i 0-11-1992 followed by confirmation letter dated 10-12-1992 (Annexure-E) ; (b) that apple juice concentrate is neither the property in dispute nor there is any allegation against the defendant that they are threatening or intending to remove or dispose of its property with a view to defraud the creditors nor the case is covered under the provisions of Order 39, Rules 1 and 2 C, P. C. ; (c) that the plaintiff has no lien over the apple juice concentrate and as such they possess no legal right to seek the order of restraint for the removal of the goods in question by the applicant-!. T. C. 9. T. C. 9. This application has vehemently been resisted by both the plaintiff as also the defendant on the grounds of inter alia locus standi, maintainability, jurisdiction of this Court to entertain the application and ultimately regarding the grant of the relief asked for Suffice it to state that plaintiff has, in addition to the pleas raised in the suit, further pleaded that it has taken ever the possession of the plant alongwith the building in question including the apple juice concentrate lying in the cold storage thereof Further contention of the plaintiff is that they are not bound by any agreements entered into between I. T. C. and defendant or S I. C, as these understandings/agreements were not brought to their notice nor had ever been acted upon by the parties thereto. In addition thereto, plaintiff alleges that pursuant to order dated 30-3-1993, passed in O. M P. 82 of 1993, the defendant was directed to pay the dues of electricity and water charges and re-connection bills on or before ?-4-1993 so that the cold storage could be brought into operation and the apple juice concentrate could be preserved because it was not functioning from 18-1-1992. The defendant failed to deposit the same end I. T. C. deposited the said amount in terms of the subsequent order of this Court and brought the cold storage into functioning. It is contended that this application has been filed in collusion with the defendant. In any case, according to the plaintiff, the case is not covered under Order 39, Rule 4 C. P. C. nor there exists any prime facie case or balance of convenience in favour of I. T. C, so as to entitle it to remove the apple juice concentrate. It has been submitted that in the interest of justice, a proper bank guarantee for the deposit of the sale proceeds of the goods referred to above, be ordered to be obtained from the party to whomsoever the apple juice concentrate is permitted to be removed for disposal On merits, the other allegations made by the applicant have been refuted. As regards the two independent agreements with S. I C and defendant, it is pointed out that the former is a partnership firm whereas latter is a company and Shri Narinder Singh Chadda is a partner in the former partnership firm and Managing Director of the latter-company. As regards the two independent agreements with S. I C and defendant, it is pointed out that the former is a partnership firm whereas latter is a company and Shri Narinder Singh Chadda is a partner in the former partnership firm and Managing Director of the latter-company. Thus, according to the plaintiff, the entire exercise of purchase and supply of apples by the firm and the company was family affair and the signatories on both the agreements were also common. Regarding the reference in the agreement relating to the payment of lease money by I. T. C. to the plaintiff, it is contended that all the payments were received by it (plaintiff ) directly from the defendant and not from I. T. C. vide forwarding letter Annexure PB. Further, it is contended that S. I. C. is not a party to the instant proceedings and any amount allegedly paid by I. T. € to this partnership firm, is legally required to be recovered by following due course of law, as both firms S I. C. and defendant have a separate legal and also commercial identities. It has strongly been contended that I. T. G. are the owners of the apple juice concentrate. The plaintiff asserts that it has first right over the entire quantity of apple juice concentrate and before its liability is discharged, the goods in question cannot be said to be belonging to I. T. C, 10. The defendant also vehemently contested this application moved by I. T. C. By way of preliminary objections, defendant contend that the applicant-1. T. C, is not a party to the suit and hence application is not maintainable under Order 39, Rules 1 and 2 C. P C , that this Court has no jurisdiction as the dispute arising in between the parties (defendant and I. T. C.)f are subject to the jurisdiction of the arbitrator appointed by the Hyderabad Courts, that the applicant has not come to the Court with clean hands* that various material facts have been suppressed and withheld from this Court by I T C , which shows that it has no enforceable claim against the defendant. It is then contended that apple juice concentrate is not the subject-matter of the dispute and as such, neither the applicant-I T. C. nor the plaintiff can claim any lien on the property of the defendant. It is then contended that apple juice concentrate is not the subject-matter of the dispute and as such, neither the applicant-I T. C. nor the plaintiff can claim any lien on the property of the defendant. On merits, it has been contended that the lessee manufactured approximately 350 metric tonnes of apple juice concentrate worth over Rs, 1 crore after which allegedly, they were forced to discontinue their operations ; that the plaintiff created hurdles for defendant in exporting the goods in question as detailed in the main suit, against the firm order supported by a letter of credit, thereby generating avoidable financial crisis to it (defendant)* In addition, it is contended that the plaintiff verily instigated its employees to create an unsavoury atmosphere at the plant premises so as to render the running of the plant by it nearing impossible. Additional plea raised is that the goods in question bad been purchased by the defendant in view of the correspondence exchanged in between them and thereafter I. T. C. cancelled the purchase contract illegally by obtaining letters Annexures FC-ly and FC-20 read with letter dated 5-2-1993. In the circumstances, I. T. C. has no subsisting right of ownership in the goods in question, inasmuch as the same were earmarked to i. T. C. subject to the lights of the defendant. Further, the contention c f the defendant is that 1 TX., at the very outset had assured/ identified minimum profit of Rs. 8,000 per metric tonnes and, thus, defendant had and continues to have a controlling say in the entire process of the sale proceeds thereof, particularly in view of the other terms of the agreement with respect to the share of profit of the defendant. According to the defendant, the rights of both the plaintiff and I. T. C. are incohate which are yet to be determined by the respective forums under the agreements, referred to above. As regards the passing of the various orders by this Court from time to lime, the defendant admits them to be correct 11. The main considerations seems to be whether or not the presence of the objector (I T-C.) is necessary to enable this Court to factually and completely adjudicate upon and settle the questions involved qua the granting of the interim relief in this suit? The main considerations seems to be whether or not the presence of the objector (I T-C.) is necessary to enable this Court to factually and completely adjudicate upon and settle the questions involved qua the granting of the interim relief in this suit? The perusal of the pleadings of the parties to the suit when read with the contents of this application (OMP No 148 of 1993) reveals that objector (I.T.C.) wants to be considered as a party to these proceedings only on the basis of its title to apple juice concentrate for the purpose of vacating the interim relief granted to the plaintiff. Whether it has a right to move an application to this effect or riot, would depend upon his locus standi to file this application as also the jurisdiction of this Court to decide the claim of ownership qua the juice concentrate referred to above. 12. At the very outset, it may be stated that the facts involved in the instant lis, are of extremely peculiar nature L T. C is not a party to the arbitration agreement entered into between the parties to the main suit. Similarly, plaintiff is also not a party to the subsequent contract containing an arbitration clause entered into between the I.T.C. and defendant. Also, disputes arising out of the former agreement, are subject to the jurisdiction of the Himachal Pradesh High Courts, whereas all the disputes, arising out of the later agreements, are subject to the jurisdiction of Hyderabad Courts. There is no controversy to the legal proposition that the subject matter of the reference and the authority of the arbitrator in the reference arising out of an agreement between the parties has, therefore, to be traced to the agreement of reference only. Third persons, who are not parties to the arbitration agreement or to the contract containing an arbitration clause and not claiming under such parties are not bound by such agreements. And not being bound, they would, as a general rule, be disentitled to enforce the agreement. However, only a person who is a party to a contract can sue on it. The existence of statutory or equitable exceptions to this rule, do not impinge upon its general fundamental character. And not being bound, they would, as a general rule, be disentitled to enforce the agreement. However, only a person who is a party to a contract can sue on it. The existence of statutory or equitable exceptions to this rule, do not impinge upon its general fundamental character. Of course, if the subject matter of the arbitration agreement is capable of assignment, or there appears to be some interest, then the assignee or such person having interest, would step into the shoes of his assignor and be both bound by it and entitle to enforce it, but for this purpose, Court should look to the Jaw relating to the assignment or contractual rights and obligations and also to see whether in a given case, the assignee has exercised his right as such. Thus, it is only those persons who claim under a party to an arbitration agreement who should, in addition to the parties themselves be held entitled to claim its benefit and also be held bound by the obligations imposed thereby. 13. Another factor, which has to be taken into consideration, is that I T.C. has not moved an application praying that it being an interested person, be impleaded in the main suit. Had it done so, even then it could not have been added as a party to the main suit in the instant proceedings, for the obvious reason that for referring the reference to the arbitrator, the agreement of the parties, has to be established so that they could be held to be bound by it. In other words, there should be a valid agreement, the terms of which are reduced to writing and the parties thereto should be ad idem. 14. Id the light of the above said facts and circumstances, the first question to be determined is whether I T.C, has a right to move an application seeking the vacation/modification of the earlier order. 15. Mr, Chhabil Dass, learned Counsel appearing on behalf of the applicant-I.T.C, has vehemently submitted that Rule 4 of Order 39 C.P C. is of remedial nature He asserts that Rule 4 of Order 39 of the Code of Civil Procedure, not only includes parties to the suit but also a third party whose rights are affected by an order passed under Order 39 Rules I and 2 thereof. Alternatively, as per him, the application is maintainable under section 151, C.P C It is argued that the jurisdiction of this Court to pass an appropriate Order providing ad interim relief to the affected party, is not taken away, particularly, in view of section 94, C.PC. read with section 41 (i) (b) read with Schedule II of the Arbitration Act 16. On the contrary, Mr. Kedar Ishwar, learned Counsel appearing on behalf of the defendant, vehemently contends that Order 39 of the Code of Civil Procedure does not include in its ambit an application for ad interim relief of temporary injunction by a third party nor such application by a stranger is maintainable under section 151, C.P.C. 17. Mr. Chhabii Dass, learned Counsel appearing on behalf of I.T.C. has further vehemently urged that the combined reading of Rules 1,2, 2-A, 3 or 3-A and 4 of the C PC, shows that it also envisages issuance of injunctions in the absence of a party and in that eventuality, the third party has a right to intervene if such injunction materially affects the rights of a person, not a party and in that intervening petition, he may refer to the pleadings of the original parties and adopt the same enjoining the prayer for relief sought by them. 18. Ordinarily, an injunction will not, in general, be granted, unless the party against whom it is claimed, is a party to the action, even if he appears. However, it will be clear from the provisions of Rules 1 and 2 of Order 39 of the Code of Civil Procedure, that an injunction can issue against a person not a party to a suit The injunction is issued only temporarily pending disposal of the suit and the assumption is that some question will be tried in the suit concerning the party against whom the injunction is sought. But the case must be covered by those provisions of Order 39 of the Code of Civil Procedure, by an injunction. The expression used in the above said rules are "by any party to the suit", defendant" or "the plaintiff" or opposite party". In Rule 4, the expression used is "party affected" by an order passed under the previous rule. Thus, it is evident that an injunction will be issued only in favour of a person or persons whose legal right has been infringed. In Rule 4, the expression used is "party affected" by an order passed under the previous rule. Thus, it is evident that an injunction will be issued only in favour of a person or persons whose legal right has been infringed. In other words, the application must be made by a party having sufficient interest. A person, who has no personal interest in the matter, cannot move for an injunction even though he may have been a party to the action. For example, where one of the terms of a contract of service is that the person contracting shall not take service elsewhere during the stipulated period, and there is a threatened breach of this term, the Court has jurisdiction to restrain such breach by issuing an interlocutory injunction not only against the party contracting but also against the third party who proposes to employ him. In Burma Oil Co. v. Sampson, it was observed "if an injunction is issued against the defendant company to restrain them from employing Sampson, that injunction can be enforced under Order 39, Rule 2 (3) by attachment of the property of the company, and should, therefore, not be a brutum fulmen. The question arises whether an injunction can be made against the defendant company. Rule 2 provides for restraining defendants that commit an injury of any kind, and I think it is clear that if Sampson is still the servant of the plaintiff company, and the defendants propose to employ him, they are committing an injury. 19. Further illustrating this proposition, had the defendant in the instant case pledged the entire apple juice concentrate with the plaintiff and had later applied for the issuance of temporary injunction restraining the defendant from removing the pledged goods, which clearly belonged to I.TC.-a third party, the latter had the right to move an application for variation or modification of the said order and get itself impleaded in the suit. 20. 20. From the above said discussion, it is evident that the conclusion which can be arrived at is that a third party, where its right is materially affected by the issuance of a temporary injunction, can move an application for the discharge/variation or modification of the Order While invoking the powers of the Court under Order 39 of the Code of Civil Procedure, a party is legally bound to intervene in the suit pending decision before the Court, Earlier, there was difference of opinion between the High Courts on the point whether a Court can or cannot issue an order of temporary injunction if the circumstances do not fall within the provisions of Order 39 of the Code but this controversy has now been set at rest by the Apex Court in the case of Padam Sen v State of Uttar Pradesh, AIR 1961 SC 218 and Manohar Lai Chopra v. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527. In the case of Padam Sen, the Apex Court observed at page 219 as : "The inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code. They are complementary to those powers and therefore, it must be held that the Court is free to exercise them for the purpose mentioned in section 151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the Legislature." This case was followed in the subsequent case of Manohar Lai wherein it has been held that when the rules in Order 39, C, P C, prescribe the circumstances in which the temporary injunction can be issued, ordinarily the Court is not to use its inherent powers to make the necessary orders in the interest of justice but is merely to see whether the circumstances of the case bring it within the prescribed rule. In other words, powers provided in this specific Order cannot be mingled with the exercise of the inherent jurisdiction of the Court Where the Court deals expressly with a particular matter, the provision should normally be regarded as exhaustive. In other words, powers provided in this specific Order cannot be mingled with the exercise of the inherent jurisdiction of the Court Where the Court deals expressly with a particular matter, the provision should normally be regarded as exhaustive. it is to be noted that section 151 of the Code itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent powers of the Court to make orders necessary for the ends of justice. In that view of the matter, in Manohar La/s case, the Apex Court has held that the Code does not control the inherent power by limiting it or otherwise affecting it. It is a power inherent in the Court by virtus of its duty to do justice between the parties before it, However, the inherent powers are to be exercised by the Court in very exceptional circumstances for which the Code hays down no procedure, 21. In the instant case, the question is whether application in question moved by the ITC falls within the ambit of Order 39, C Pc C. It has to be answered in the negative, for the reason that had I. T. C. intervened by moving an application for being impleaded as a party, it could not have been added as a party. Even otherwise, in view of the pleadings of the defendant, the rights in between it and I, T. C. with respect to the ownership of the apple juice concentrate, are disputed by the defendant thus, in the interest of justice, 1 T. C. should have been ordered to be impleaded in the main suit as a defendant, but this Court cannot pass such an order in view of the existence of arbitration agreements referred to above In other words, the circumstances involved in the instant Us, reveal the instant case to be a case of exceptional nature. The underlying object of issuance of injunction against alienation, waste, damage and fraudulent disposition of property pending suit, is to protect a right of property, no matter by whom invasion or such right is attempted. The protection of property from damage or destruction, pending litigation, is an established power of equity. The Court does not undertake to settle the right but merely to preserve the property until the right is settled at law. The protection of property from damage or destruction, pending litigation, is an established power of equity. The Court does not undertake to settle the right but merely to preserve the property until the right is settled at law. Thus, on the principle of protecting the property pending litigation, in the peculiar facts and circumstances of the instant case, this Court has power to exercise its inherent jurisdiction under section 15J9C~P.-.C for the purpose of issuance of temporary injunction on an application moved by I. T. C.-a third party. 22. It is true that the plaintiff has taken arbitration proceedings by filing an application under section 20 of the Arbitration Act before this Court. High Court is a Court of record. Even otherwise, section 41 (!) (b) read with Schedule II of the Arbitration Act, empowers a Court to issue interim injunction but such injunction can be for the purpose of and in relation to the arbitration proceedings either before the Court or before the arbitrator Support can be had from the decision in M/s. H. M K Ansari and Co. v Union of India, AIR 1984 SC 29, wherein it is observed as follows, at page 32 \ "In view of clause (b) of section 41 the Court has been given power of passing orders in respect of any of the matters set out in Second Schedule for the purpose of and in relation to any proceedings before the Court. The Second Schedule of Arbitration Act inter alia includes interim injunction and the appointment of Receiver. But the Court has got the power to pass an order for the purpose of and in relation to arbitration proceedings before the Court." In view of the above said discussion, I am of the positive view that third party who is aggrieved by order of temporary injunction issued under the provisions of section 4i (1) (b) read with Schedule II of the Act analogous to that of Order 39 of the Code of Civil Procedure, has locus-standi to move an application for the variation/modification of the same, and in that view of the matter, this Court has jurisdiction to pass appropriate orders. 23. 23. The next point urged by the learned Counsel for I.T.C. is that apple juice concentrate is not the property in dispute in the main suit nor the defendant is the owner thereof nor plaintiff has raised a title thereto, nor any allegation of threat that the goods in question are in danger of being wasted, damaged or alienated by any party to the suit or that the defendant has threatened or intended to remove or dispose of his property with a view to defraud its creditors or intends to cause injury to the plaintiff in relation to the goods in question, has been made in the application. As such, this Court has no power to issue temporary injunction qua the goods in question of which the applicant-I. T. C. is the absolute owner. 24. At the very outset, it may be stated that the learned Counsel for the plaintiff has fairly and squarely conceded that he cannot claim any lien over the goods of the lessee under section 112 of the Transfer of Property Act. Thus, in the light of this concession, it has to be seen as to whether temporary injunction can or cannot be granted in favour of the plaintiff. 25. Both the defendant as also ITC, as per their respective pleadings, have claimed ownership to the apple juice concentrate. The parties are not at controversy that apple juice concentrate is of perishable nature and it is lying in the tanks of the cold storage forming part of the premises of the fruit processing plant earlier leased out to defendant since the first week of December, 1992. It is also not disputed that electricity and water connections stood dis-connected from December, 19^2 onwards and it was at the behest of the plaintiff that the electricity and water connections were allowed to be restored vide order dated 30-3-1993. The said facilities were restored in the first week of April, 1993. There is also no dispute that only electricity and water connection charges to the extent of three lacs have been deposited by the I. T. C However, as per the plaintiff, re-connection charges have not been paid in full. Also, there is no controversy to the effect that premises of the fruit processing plant inclusive of the cold storage is in possession of the plaintiff since May 4, 1993. Also, there is no controversy to the effect that premises of the fruit processing plant inclusive of the cold storage is in possession of the plaintiff since May 4, 1993. In other words, apple juice concentrate lying in the tanks Is in custody of the plaintiff. 26. In support of the claim of absolute ownership of the goods in question (apple juice concentrate), learned Counsel appearing for LT.C. in addition to the concession made by the learned Counsel for the plaintiff and also undisputed facts, referred to above, is brought to the notice of this Court that: (i) memorandum of understanding in relation to the conversion and marketing and agreements dated October 28, 1992 were in the knowledge of the plaintiff; that property and goods were never that of defendant but its absolute ownership was that of I.T.C ; (ii) that terms and conditions of the agreement entered into between the defendant and I T.C. indicated the intention of the parties as to who was the owner of the apple juice concentrate. Supplementing his submissions, he urged that I,T.C was a company registered under the Indian Companies Act whereas M/s. S. I. C. was a partnership firm. Both the company and the firm had separate legal identities irrespective of the fact that the defendant was the managing Director of the former company and a partner of the latter firm. In that view of the matter, property and goods ultimately manufactured in the leased premises, legally could be that of the I.T.C. and not of the defendant. Both the company and the firm had separate legal identities irrespective of the fact that the defendant was the managing Director of the former company and a partner of the latter firm. In that view of the matter, property and goods ultimately manufactured in the leased premises, legally could be that of the I.T.C. and not of the defendant. He has also referred to the receipts/vouchers acknowledged by the defendant in this behalf, which show the receipt of the money for the purchase of apples by S. I. C. and supply thereof by the said firm to the defendant and ultimate confirmation of the absolute ownership of the goods in question of I.T.C. Similarly, it showed the payments made for the above said purposes to the company as also the firm pursuant to the terms and conditions of the two independent agreements dated 28-10-1992 ; (iii) that defendant also admitted in his short reply affidavit dated 29-4-1993 that the apple juice concentrate belonged to I.T.C. to the extent of 288.417 metric tonnes in designated tanks (page 20:0 though later on this admission stood withdrawn by the defendant in its reply filed to this application (OMP 148 of 1993) and in his separately filed application shown at Sr. No. 13 of the above table—O.M.P. 281 of 1993 ; (iv) that in the subsequent pleadings of the defendant, he does not claim title to the goods except to enjoy a minimum profit of Rs. 4.000 per tonne over the total cost of production and in case the price provides a minimum profit more than Rs. 8,000 per tonne then the balance margin was to be shared in the ratio of 51% for I T.C. and 49% for the defendant. As per the learned Counsel, no document with O M.P. 281 of 1993, indicating his ownership/lien or any other kind of interest, has been produced by the defendant; (v) that correspondence exchanged between the defendant and I.T.C. coupled with the originals of FC-19 and FC-20 produced by IT C. and compared with the documents FC-19 and FC-20 produced by the defendant and consequently statement of defendant recorded with respect to the discrepancy in between the documents, show that property and goods always remained with I T.C. 27. On the contrary, Sh. On the contrary, Sh. Kedar Ishwar, learned Counsel for the defendant, in addition to the objections raised with respect to the maintainability of this application (OM P. 148 of 1993), jurisdiction of this Court to adjudicate upon it, submits that plaintiff has not claimed any ownership over the moveable property (apple juice concentrate) which legally is in defendants possession ; that I.T.C. is a stranger and not a party to the suit and, therefore, not liable to claim any relief sought for by him ; that even agreements dated 8-1-1993 entered into between the plaintiff and defendant show that tender was submitted by S I C but agreement was entered into in between the plaintiff and the defendant through Mr. Narinder Chadda, who was the partner of partnership firm S.I.C. and managing director of defendant. According to him, S.I.C. is the subsidiary of defendant; that payment of money to the two firms by I.T.C. was nothing but payment to the defendant as per the promise made by the I.T.C. to financial back up the defendant, as such, the ownership is of the defendant and not of I.T.C. The latter has only money claim against the defendant for which remedy lies in Hyderabad Court; that the two letters FC-19 and FC-29 read with the previous correspondence exchanged between the defendant and I.T.C. show that the goods in question had already been sold to him and I.T.C. was entitled to claim the agreed price and nothing more. In any case, even if the I.T.C. is deemed to be the owner of the goods in question, it is subject to the payment of share of profits as per terms 5 and 7 of the agreements, entered into between the parties aforesaid on 28-10-1992. 28. I need not detail the grounds of claim raised against the plaintiff revealing that no amount is due to the plaintiff for creating wrongful impediments in the running of the plant and causing substantial pecuniary loss in respect of the production of the apple juice concentrate. They have already been detailed earlier. 29. Mr. 28. I need not detail the grounds of claim raised against the plaintiff revealing that no amount is due to the plaintiff for creating wrongful impediments in the running of the plant and causing substantial pecuniary loss in respect of the production of the apple juice concentrate. They have already been detailed earlier. 29. Mr. K. D. Sood, learned Counsel for the plaintiff, has no doubt conceded that he cannot have lien over the property of the defendant, yet, as per him, plaintiffs claim amounting to approximately Rs 7 crores and 80 lacs subsists against the defendant and as such, he is entitled to be protected against the interest possessed by the defendant in the apple juice concentrate by way of profits etc. as per the agreement entered into between the defendant and the I.T.C. As regards the arguments that there is no allegation with respect to the goods in question to be in danger of being alienated or wasted, it is urged that defendant as also I T.C. are bent upon removing the apple juice concentrate as per their pleadings and submissions made before this Court; that the apple juice concentrate is now in the possession of the plaintiff and in case their interest is not safeguarded in view of the facts stated in the pleadings and admitted to by the defendant, the plaintiff would suffer prima facie huge losses. 30. At the cost of repetition, it may be stated that before a temporary injunction can issue under Order 39, Rule I C. P. C. or section 41 (1) (b) read with Schedule II of the Arbitration Act, the conditions mentioned therein must be satisfied. Injunction, whether temporary or perpetual, sometimes enforces the obligation, if arising in contract or specifically restraining the violation of those other obligations which are subject of Law of Tort. In other cases it seeks merely to preserve the status quo enjoining interference pendente-lie by waste, damage or alienation of the subject of litigation or the fraudulent disposal of his property by a party-defendant to a suit. 31. In the instant case, all parties claim the existence of interest arising out of the goods in dispute. In other cases it seeks merely to preserve the status quo enjoining interference pendente-lie by waste, damage or alienation of the subject of litigation or the fraudulent disposal of his property by a party-defendant to a suit. 31. In the instant case, all parties claim the existence of interest arising out of the goods in dispute. ITC claims absolute ownership whereas defendant disputes the same and in the first instance claims to be the owner of the said goods in question and in the alternative that property in the said goods are subject to the payment of his share of profit arising from the sale thereof, as per the terms of the agreement entered into between the parties. Admittedly, 346 417 metric tonnes of apple juice concentrate has been manufactured by the defendant. His minimum share of profit, as per the agreement, is to the tune of Rs. 4,000 per tonne as mentioned in the agreement and it varied in accordance with the share of profit gained by the sale of the goods in question in case its profit exceeds Rs. 8,000 per metric tonne, as per the terms of the agreement. There is no evidence on record to show as to what is the cost of production per metric tonne of the apple juice concentrate However, FC-20 (at page 508; indicates that 180 222 metric tonne of the apple juice concentrate was to be sold at Rs 26,000 per metric tonne and 110 metric tonnes thereof was to be sold at Rs 30,000 per metric tonnes as per the proposed selling contract. This is a letter issued by ITC. to the defendant This shows that the index of the cost of production of the apple juice concentrate in question must have been at a lower rate. Now I T.C. has agreed to offer security at the rate of Rs. 35,000 per metric tonne for the lifting of the goods in question. It should be considered to be the minimum market value at the relevant time. If that be taken into consideration, then the share of profit of defendant over the entire manufactured goods in question comes to a substantial amount. 35,000 per metric tonne for the lifting of the goods in question. It should be considered to be the minimum market value at the relevant time. If that be taken into consideration, then the share of profit of defendant over the entire manufactured goods in question comes to a substantial amount. Whether it has been paid or not is yet a matter disputed in between the parties and to that extent defendant can be said to have lien over the goods in question In other words, defendant may be a bailee for and on behalf of the I.T.C, yet the ownership of the latter is prima facie subject to the lien of the defendant Jn other words, defendant has been able to prove prima facie some interest in the apple juice concentrate and in that view of the matter, the same can be considered to be the property in dispute. 32. Even otherwise, I. T. C. as also the defendant as per their pleadings in the form of application and reply by way of affidavits, have shown their intention to remove the apple juice concentrate from the premises of the plaintiff. Even if there is no allegation made by the plaintiff that property in dispute is being alienated, wasted, damaged or fraudulently disposed of pending the suit, this very averment on their part reveal that the property in dispute is threatened to be removed or otherwise the removal thereof would cause injury to the plaintiff in relation to the property in dispute referred to above. 33. Even otherwise, the plaintiff is entitled to the consumption of the electricity and water charges, apart from the storage charges for the period for which the goods in question remained in their tanks in the fruit processing plant 34. At this stage, it would be pertinent to detail that vide orders of this Court dated 30-3-1993, the defendant in the first instance, subject to depositing the entire electricity, water and re-connection charges and in case of his failure to do so, the plaintiff was allowed to take steps for the running of the cold storage by depositing the electricity, water and re-connection charges in which the goods in question were lying. Also, vide the subsequent order dated 30-4-1993, the rate, for the purpose of surety for lifting 100 tonnes of the goods in question, was calculated at the rate indicated by the applicant-L T. C. On the subsequent date 7-5-1993, this rate was disputed by Mr. Chhabil Dass, learned Counsel for 1. T. C, that it should have been Rs 28,000 per metric tonne, but the learned Counsel for the plaintiff, had shown plaintiffs willingness to lift the same at the rate of Rs. 35,000 per metric tonne and, therefore, bank guarantee was not reduced, 35. In view of the above discussion, the defendant has, at least shown the existence of his substantial interest in the goods in question against I. T. C. which can be prima facie considered as by way of lien over the property in possession of the defendant as also the plaintiff. Thus, the goods in question can be termed as property in dispute. Simultaneously, the plaintiff has also shown some claim against I. 7\ C. which has yet to be settled. It is to be noted that I T. C. has been allowed to lift the apple juice concentrate to the tune of 100 metric tonnes subject to the furnishing of bank guarantee at the rate of Rs 35,000 per metric tonne. I have already held that there exists exceptional facts and circumstances in which the dispute in the instant suit has arisen and in which I. T. C, has moved the application in question. AH the parties to the instant proceedings have made claim against each other. Thus, in the absence of i. T. C. being a party to the main suit and also that this Court cannot direct the applicant-I. T. C to be impleaded as a party in the peculiar facts and circumstances of this case, this Court is legally bound to preserve the property, until the rights of all the parties are settled at law, by exercising its inherent jurisdiction under section 151 of the Code of Civil Procedure through the issuance of a temporary injunction. The plaintiff has, no doubt, made no allegation that defendant has threatened to remove or dispose of the property in dispute with a malafide intention, yet, the intention shown by the defendant or I T. C to lift the goods in question* coupled with the order passed by this Court allowing 1. The plaintiff has, no doubt, made no allegation that defendant has threatened to remove or dispose of the property in dispute with a malafide intention, yet, the intention shown by the defendant or I T. C to lift the goods in question* coupled with the order passed by this Court allowing 1. T. C. to do so subject to its furnishing bank guarantee, provides sufficient proof of this fact and it can be taken note of by this Court. Apart from the above, I. T. C has not supplied any statement indicating as to what is the subsisting interest of the defendant, whether it is nominal or substantial one. Also, the correspondence exchanged in between I. T C. and defendant, between the date of stoppage of the running of the fruit processing plant and that of moving the instant application, I. T. C. has not shown as to why the apple juice concentrate was not lifted by it despite its claim of absolute ownership thereto. The plaintiff has a subsisting claim of more than Rs. 7 crores against the defendant, as per its pleadings, which the defendant has indirectly disputed. Also, the goods in question are of perishable nature. 36. Keeping in view all the facts and circumstances, to my mind, the plaintiff has been able to establish all the requisites, i e. existence of a prima facie case, balance of convenience, possibility of suffering irreparable injury and substantial loss which cannot be compensated with costs and the conduct of the defendant as also of I. T. C, needed for the issuance of temporary injunction. After all, the protection of property from damage or destruction, pending litigation, is an established power of equity, that too, is of discretionary nature, which discretion is to be exercised judiciously. Thus, in the facts and circumstances of the instant case, I hold that the plaintiff is entitled to the grant of temporary injunction. Out of 288.417 metric tonnes of apple juice concentrate, 100 tonnes have already been lifted by J. T. C subject to furnishing of bank security. Thus, in the facts and circumstances of the instant case, I hold that the plaintiff is entitled to the grant of temporary injunction. Out of 288.417 metric tonnes of apple juice concentrate, 100 tonnes have already been lifted by J. T. C subject to furnishing of bank security. In that view of the matter, the applicant-I. T. C is now further allowed to lift 50% of the balance apple juice concentrate amounting to 138.417 metric tonnes on the same terms and conditions as already ordered by this Court and the remaining balance i e. 94 2085 metric tonnes be lifted subject to deposit of the amount calculated at the agreed rate of Rs 35,000 per metric tonnes in the Registry of this Court on or before 5th of October, 1993. The I. T. C. claims to be multi national company having a turnover exceeding Rs. 3,000 crores annually. In case of failure of I. T. C. to do so, the plaintiff shall be entitled to effect the sale of goods in question, referred to above subject to the same terms and conditions. Both applications stand disposed of accordingly. However, any expression used or opinion expressed with reference to the disposal of these applications, shall not have any effect on the merits of the main suit. O. M. P. 281 of 1993: 37. So far as this O. M. P. is concerned, the withdrawal of the admission made by the defendant, if allowed, shall ultimately affect the decision of the dispute arising in between the |. T. C. and the defendant. That dispute is subject to the jurisdiction of the Hyderabad Courts Thus, at this stage, it would not be proper to finally pass any order. As such, the same is also dismissed However, this question is left open for the decision of the appropriate forum. O. M. P.s 229 and 264 of 1993: 38. These applications are covered by the ultimate findings, arrived at by this Court, in O M. P.s 45 of 1993 and 148 of 1993. Both of them are disposed of accordingly. O. M. P. 278 of 1993: 39. By this application, the inadvertant typing mistake, with respect to the rate of lifting the apple juice concentrate, has^ been sought to be corrected by the 1. T. C, which stood corrected vide order dated 7-5-1993. Both of them are disposed of accordingly. O. M. P. 278 of 1993: 39. By this application, the inadvertant typing mistake, with respect to the rate of lifting the apple juice concentrate, has^ been sought to be corrected by the 1. T. C, which stood corrected vide order dated 7-5-1993. Resultantly, this application stands disposed of O. M. P. 279 of 1993: 40. In view of the order passed on 26-7-1993 and the statement of Shri Narender Chadda, the Managing Director of defendant, recorded on that day this application has become infructuous. O. M. P.s 239, 277 and 413 of 1993 3 41. All these applications pertain to the parties to the main suit. I.T.C. has no concern with it. The defendant therein seeks direction that the plaintiff be restrained from leasing out the fruit processing plant in question by negotiation or otherwise to any third party including the prospective lessee, namely, M/s. Gopal Associates. In the subsequent application, a direction to the plaintiff restraining them from obstructing the defendant from running and having ingress and egress into the premises of the fruit processing plant in question, has also been sought for. 42. At the cost of repetition, it would be necessary to detail that pursuant to an agreement, letter executed on 8-1-1993, the defendant was put into possession of the fruit processing plant located at Parwanoo 00 30th of September, 1992. As per the plaintiff, the defendant failed to run the plant in question and to pay the agreed instalments as also the salary of the staff etc. in terms of the lease. Subsequently, the lease was terminated on 3-5-1993 and the plaintiff took over the possession of the plant in question on 4-5-1993 to the knowledge of the defendants. The other facts relating to the dispute having arisen have already been detailed above. Defendant has specifically averred in these applications that the plaintiff without any lawful authority in law and in grave violation of the conditions of the lease deed, unauthorisedly dispossessed the defendant from the plant despite the protest of the defendant. According to him, the action of the plaintiff is arbitrary, illegal and unconstitutional. 43. Plaintiff, in its reply to these applications, have refuted the allegations in its entirety. According to him, the action of the plaintiff is arbitrary, illegal and unconstitutional. 43. Plaintiff, in its reply to these applications, have refuted the allegations in its entirety. Rather it has reiterated the stand taken by it in the main suit In addition thereto, due to persistent default of the defendant, in paying the second and third quarterly instalments alongwith interest out of annual lease money of Rs 2.16 crores payable in advance, the lease was duly terminated under the terms and conditions of the lease deed and after giving due opportunity to the defendant. Further, it is contended that the defendant, at no stage objected to the taking over of the plant in question by the plaintiff even despite service of one months clear notice. Plaintiff admits the issuance of an advertisement in the Tribune dated 24-6-1993 for the leasing out of the plant in question and consequent thereto, acceptance of the officer of M/s Gopal Associates as prospective lessees. Plaintiff also contends that the defendant neither paid lease money as per Schedule nor the salary of the staff and their other dues nor made the payments of water, electricity and telephone charges etc. According to it, these applications have been filed with a view to delay the proceedings in the main suit and also to harm the interest of the plaintiff by not allowing it to run the plant in question. In these applications, interim relief has been sought for in the shape of grant of temporary injunction. 44. Undoubtedly, defendant-applicant came into possession of the plant in question on 30th of September, 1992. For the purpose of deciding these applications, we are not concerned with the circumstances that at the material time what, were its financial sources or who helped it in the manufacture of apple juice concentrate The fact remains that the defendant company remained in possession of the plant in question for just over two months and manufactured apple juice concentrate to the extent of about 400 metric tonnes. There is no gainsaying the fact that lease deed was executed on 8-1-1993 despite the fact that as per the averments of the defendant, the plant in question was not in production because of the mis-behaviour of the plaintiffs staff employed with them. The pleadings of the parties also show that except for two months, the salary of the staff etc. The pleadings of the parties also show that except for two months, the salary of the staff etc. has not been paid by the defendant. Admittedly, the offer of the plaintiff was with the defendant and it was running and managing the plant. The staff was taken back by the plaintiff on 4-5-1993 and admittedly their pay for the months of September as also December onwards till May, 1993 has not been paid by the defendant-company. The subsequent conduct of the defendant also shows that it did not comply with its undertaking given by it through its learned Counsel on 30th of March, 1993. 45. The order dated 30th March, 1993. referred to above, clearly shows that defendant was given a chance to run the cold storage by depositing electricity, water and re-connection charges but it failed to do so within the stipulated period. Even thereafter, the defendant did not make an offer to liquidate the limited charges so ordered by this Court at any subsequent time, nor even after the filing of the application by I.T.C. claiming ownership of the apple juice concentrate lying in the premises of the fruit processing plant in question Record further shows that undertaking was given by the defendant company through its Counsel on 30th of March, 1993 without making any complaint with respect to the pleas now raised before this Court. Various letters annexed with the plaint and addressed to the defendant calling upon them to pay the wages and salaries of the staff employed with them and second and third instalments, prima facie show persistent defaults of the defendant. 46. Now so far as the allegations with respect to the termination of the lease is concerned, clause (i) of the lease deed provides: — ".........The lease money shall not be refundable, if for any reason the lease is terminated by either party. In case the lessee fails to pay any instalment of lease money in advance as per schedule given above, the lessor shall have the right to charge interest at the rate of 2% per month for the period the payment is delayed by the lessee. In case the lessee fails to pay any instalment of lease money in advance as per schedule given above, the lessor shall have the right to charge interest at the rate of 2% per month for the period the payment is delayed by the lessee. In case the lessee fails to pay the instalment within a period of one month, alongwith interest, the lessor shall have the right to terminate the lease forthwith and the lessor shall also have the right to enter into premises to take over the possession of the leased plant." Plaintiff has given opportunity to the defendant to repay the instalments etc. with interest, which the defendant has failed to comply with. Therefore, prima facie, for the purpose of disposal of this application, the defendant appears to be at fault. Even otherwise, plaintiff is in possession of the plant The defendant could have moved an application detailing circumstances for seeking the direction restraining the plaintiff to take over the fruit processing plant in question That has not so been done. It is for the first time that objections with respect to illegal termination have been taken over in the reply filed by them on 8th of June, 1995, for the first time. Even no objection by way of letter to the taking over of the plant in question by the plaintiff seems to have been taken in between 4-5-1993 and 8 6-1993. Also, whether the termination is illegal or unauthorised one, has yet to be decided by the arbitrator Even, according to the defendant, the running of the plant in question was stopped in December, 1992 by the wrongful impediments put forth by the plaintiff and its staff. Thus, prima facie, it cannot be said that plaintiff terminated the lease without any valid reasons. 47. Apart from the above, even subsequently on August 27, 1993, when the defendant pointed out that plaintiffs were intending to lease out the plant in question to M/s. Gopal Associates on the annual lease money of Rs. 207 crores, the defendant through its Counsel was asked as to whether it (defendant) was ready and willing to deposit the said amount within 5 days from 30th August, 1993. The relevant order passed on August 27, 1993 is as under:— "OMPs 239 and 277 of 1993: Arguments heard. Judgment reserved. 207 crores, the defendant through its Counsel was asked as to whether it (defendant) was ready and willing to deposit the said amount within 5 days from 30th August, 1993. The relevant order passed on August 27, 1993 is as under:— "OMPs 239 and 277 of 1993: Arguments heard. Judgment reserved. C S 19 of 1993 : Learned Counsel for the defendant have pointed out that the plaintiffs are intending to lease out the Parwanoo plant to one M/s. Gopal Associates on the terms and conditions agreed to in between them. It has also been brought to the notice of the Court that for the first year, 2.07 crores are to be deposited by them in the first instance as lease money within 5 days before handing over the possession. Notwithstanding the dispute arising in between the parties, learned Counsel for the defendant has been asked by this Court as to whether he is ready and willing to deposit the said amount within 5 days from 30th of August, 1993. Learned Counsel seeks time to seek instructions in this regard to apprise this Court about the query made. Accordingly, the case is adjourned to 30th August, 1993 Till 30th August, 1993, plaintiff will not hand over the possession of the plant to the prospective contractor. Copy dasti." 48, Instead of giving a straightforward answer, the defendant moved an application (O M-P 413 of 1993) seeking clarification of the earlier order On September 1, 1993, another opportunity was afforded to the defendant to show his bona fides vide order of the even date. Tfce extract of the relevant order is as under:— "OMPs No. 277 and 413 of 1993: An application dated 29th August, 1993 (O.M.P. 413 of 1993) is stated to have been filed by the defendant on the following day, copy of which has been given to the plaintiff Learned Counsel for the plaintiff wants to file reply to it Be filed on or before 6th September, 1993. Learned Counsel for the defendant seeks time to finally intimate this Court on 6th September, 1993 as to whether he is in a position to deposit the amount so required by this Court in case he intends to run the Fruit Processing Plant at Parwanoo, Arguments have already been heard in OM. Learned Counsel for the defendant seeks time to finally intimate this Court on 6th September, 1993 as to whether he is in a position to deposit the amount so required by this Court in case he intends to run the Fruit Processing Plant at Parwanoo, Arguments have already been heard in OM. P. 277/93 but in view of the new developments, let these applications be listed for disposal on 8th September, 1993. OMP No. 148 of 1993: C. S. No. 19 of 1993: The possession of the plant be not handed over to the new party till 8th September, 1993. However, the new party would be at liberty to deposit the amount as per the terras if it so desires. Dasti copy on usual terms.” 49. The defendant company did not offer to deposit the said amount. However, its learned Counsels showed their inability to intimate whether their client was or was not ready and willing to deposit the said amount in advance. The entire annual lease money to the extent of Rs. 2 07 crores, as per the terms of the agreement entered into between the plaintiff and the prospective lessee, was asked for to be paid in advance by the defendant keeping in view his past conduct, discussed in detail above, instead of Rs. 2.16 crores as per his own lease deed. In the circumstances, he has failed to show his intention that he is ready to run the fruit processing plant in question. On the contrary, it shows that defendant is not in a position to run the plant in question nor it is in a position to pay the annual lease money for the future running of the plant. The plant cannot be allowed to remain idle which is worth crores of rupees- In case the machines do not run and are not utilised and the plant does not work, there is every possibility thereof becoming junk and thereby public money would be wasted. It is another thing how the prospective lessee pays the annual lease money. 50. The plant cannot be allowed to remain idle which is worth crores of rupees- In case the machines do not run and are not utilised and the plant does not work, there is every possibility thereof becoming junk and thereby public money would be wasted. It is another thing how the prospective lessee pays the annual lease money. 50. Otherwise also, the lease deed shows that the contract is determinable for various reasons as per its terms and conditions It also provides an alternative remedy to the defendant and the defendant: can get damages in case it succeeds to show that the contract was wrongly determined and the plaintiff came in wrongful possession of the plant in question Judicial notice of the fact that the apple season is on, can be taken note of by this Court. In case the plant in question is not allowed to run either by the plaintiff or through its lessees, it will result into irreparable injury and substantial loss to the plaintiff which cannot be compensated with costs, in comparison to the defendant. The defendant has also averred that some of the conditions of the lease deed are onerous and void. If it is so, then it knocks out (he basis for enforcement of the claim of the defendant with respect to the reliefs sought by it in these applications, inasmuch as the defendant is blowing hot and cold at the same time. In the instant case, the transaction is a commercial one and the clause for the payment of the lease money is relevant and material and thus, enforceable. As such, the plea that the plant in question should not be allowed to be let out to anyone, appears to be wholly untenable. 51. In view of the above, none of the requisites, essential for the allowing of tbe application for the grant of temporary injunction, have been shown by the defendant. The conduct of the defendant does not appear to be fair and honest As the relief sought for is of purely equitable nature, the defendant should have acted upon the governing principles that "he who seeks equity, must do equity. No relief can be given which arise to anyone muchless the defendant in the instant case, out of his own wrong. 52. No relief can be given which arise to anyone muchless the defendant in the instant case, out of his own wrong. 52. The totality of the circumstances discussed above shows that the defendant is not entitled to any relief in either of the applications. Resultantly, the plaintiff is entitled to exercise its right by leasing out the fruit processing plant to any other prospective lessee, 53. In view of the above, all these applications are dismissed. However, any expression used or opinion expressed with reference to the disposal of these applications, shall not have any effect on the merits of the main suit Civil Suit 19 of 1993 54. Admittedly, the agreement dated 8-1-1993 was executed in between the plaintiff and the defendant. I. T C. is not a party to the same. The relief sought for at the behest of the plaintiff is that disputes have arisen in between the parties to the suit and matter be referred to the sole arbitrator-Secretary (Law) to the Government of H. P. Clause 22 of the agreement (Annexure R-4) lays down: "Secretary (Law), Government of H. P., shall be the sole arbitrator whose decisions shall be binding on the parties. AH disputes arising from this lease shall be referred to him for arbitration” At this stage, it would be pertinent to detail that plaintiff is in possession of the fruit processing plant in question at present. They have in their subsequent pleadings through applications brought to the notice of this Court that due to persistent defaults of the defendants in complying with the terms and conditions of the lease deed, as also their failure to comply with the orders passed by this Court in relation to the running of the plant in question, their lease was duly terminated on 3-5-1993 after giving due opportunity to the defendant and the possession of the fruit processing plant was taken over by them (plaintiff) on 4-5-1993 to the knowledge of the defendant According to the plaintiff, the defendant never objected to the taking over of the plant in question. This fact of taking over of possession of the plant in question has also been disputed to by the defendant in their applications referred to at Sr. Nos. This fact of taking over of possession of the plant in question has also been disputed to by the defendant in their applications referred to at Sr. Nos. 8 and 10 of the table above The pleadings of the parties show that there are claims and counter claims- The entire claim of the plaintiff has been refuted by the defendant on various grounds which needs determination The claim of the plaintiff is for 7 crores and 89 lacs. The jurisdiction of this Court is not challenged. Pleadings show that disputes have arisen. Thus, according to the terms of the agreement, the same is liable to be referred to the arbitration of Secretary (Law) to the Government of H. P. for its decision. 55. Shri Kedar Ishwar, learned Counsel for the defendant, has vehemently urged that no doubt disputes have arisen in between the parties, the same be referred to by framing specific points with respect to its nature. Pleadings show that various points with respect to legality of the agreement, acts and omissions of the plaintiff resulting into loss caused to the defendants, and liability of the defendants in respect of various items, have arisen. 56. Law does not enjoin a duty upon the Court to frame points and then refer the dispute to the arbitrator. Clause 22 of the agreement by itself lays down that all disputes arising from the lease deed in question shall be referred to the named arbitrator. In that view of the matter, parties shall be at liberty to raise disputed questions, but within the ambit of the lease deed, before the arbitrator, who shall thereupon finally determine the same. In any case, as discussed above, the disputes are liable to be referred to the sole arbitrator-Secretary (Law) to the Government of H. P. for its decision. I order accordingly. 57. Parties are, however, left to bear their own costs. Order accordingly.