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2000 DIGILAW 85 (JK)

J&K Industries Ltd. v. Mohd. Amin

2000-05-03

G.D.SHARMA

body2000
1. This revision petition is directed against the order dated: 14-07-1999 passed by the learned IV Addl. District Judge, Srinagar in appeal No: 57/98 filed therein by the petitioners against the order dated: 05-10-1998 and order dated: 21-12-1998. Both these orders were passed by the learned City Munsiff. Srinagar. In the order dated: 05-10-1998 direction was given to the petitioners herein to implement the court order dated: 07-03-1998 and supply initially 200 Kgs of raffle yarn for which respondent had already deposited the price. The supply was to be made within a period of ten days from the receipt of the order. Further direction was given that when this supply of 200 Kgs of raffle yarn was received, respondent had to deposit the price of the remaining quantity of the raffle yarn within seven days. In terms of the order dated: 21-12-1998, the initial accounts of the petitioner herein maintained in the Jammu Kashmir Bank Ltd. Amirakadal and residency road, Srinagar were attached. Both the above stated orders were challenged in appeal before the learned IV Addl. District Judge. Srinagar vide order dated: 14-07-1999. The appeal was dismissed with a further observation that even if the petitioners do not produce the raffle yarn it is their obligation to procure the same form open market and ensure the compliance of the court order. 2. The factual matrix of the case lies in a narrow compass. Respondent herein filed suit for mandatory injunction against petitioners praying for the relief that they must be directed to supply 2845 Kgs of raffle yarn of the quantity of 1.42 and 2.42 at the rate of Rs.111/- per Kg. The claim put up in the plaint was that respondent herein vide order No. MD/SIS/SM-9/79-80 dated; 25-10-1986 had been allotted 5100 Kgs of Raffle Yarn of the above stated quality on the terms of conditions contained in the said allotment order. As a consequence of the allotment, respondent on 03-11-1986 deposited Rs.20,000/- as security vide receipt No. 2186 dated: 03-11-1986. Respondent lifted 2255 Kgs of said yarn against price but the remaining quantity was not supplied. The case of the respondent is that there was a subsisting contract between the parties and petitioners were under obligation to make available the balance quantity of raffle yarn in the quantity of 2845 Kgs at the agreed price. Respondent lifted 2255 Kgs of said yarn against price but the remaining quantity was not supplied. The case of the respondent is that there was a subsisting contract between the parties and petitioners were under obligation to make available the balance quantity of raffle yarn in the quantity of 2845 Kgs at the agreed price. It was also pleaded that respondent approached the petitioners many a times personally as well as through written communication to make good the deficit supply but all efforts ended in vain. Hence the suit was filed. In the written statement, the petitioners raised the preliminary objection regarding the maintainability of the suit. It was alleged that he had failed to lift the whole quantity of 5100 Kgs of raffle yarn within a period of one month. As agreed in terms of the allotment order and on the basis of this breach of the stipulations he was not entitled to claim the remaining quantity. That there was no document on the record to show that there was a subsisting contract between the parties and in the absence of any contract the suit was not maintainable. 3. The suit was accompanied by an application made by the respondent under Order 39 Rule 1 CPC wherein prayer was made for the grant of interim relief that petitioners may be directed to supply the remaining quantity of raffle yarn. On 07-03-1988, the trial court passed the order holding that respondent had a prima facie case and directed the petitioners herein to supply the balance of raffle yarn at the stipulated rate of Rs.111/- per Kg during the pendency of the suit. Condition was imposed that respondent shall furnish undertaking to the effect that in the event of failing in the suit he would return the balance of yarn so supplied or in the alternative the price of the same prevalent at the time of disposal of the suit should be paid. This order was challenged in appeal before the learned District Judge, Srinagar who transferred the appeal to the learned Ilnd Addl. District Judge, Srinagar. After hearing the counsel for the parties, the appellate court dismissed the appeal but imposed the condition that respondent shall not withdraw the amount of Rs.20,000/- already deposited with the petitioner herein. This order was challenged in appeal before the learned District Judge, Srinagar who transferred the appeal to the learned Ilnd Addl. District Judge, Srinagar. After hearing the counsel for the parties, the appellate court dismissed the appeal but imposed the condition that respondent shall not withdraw the amount of Rs.20,000/- already deposited with the petitioner herein. Respondent had to make cash down payment against the quantity which was to be supplied to him at the agreed rate and in case there was a difference with the market rate then he had to give additional security of that amount before the trial court. This order was passed by the appellate court on 14-07-1988 which was challenged in revision petition before this court (C.R. No. 166/88). The revision petition was dismissed on July 27, 1988. The plea of the petitioners herein that supply of the remaining yarn was refused because respondent had failed to lift the whole quantity within one month, was met in the order with the observation that this was a matter to be tried by the trial court after the issues are framed and a question of evidence. It was also held that the present case was a case of allotment and the below had exercised their discretionary power in favour of the respondent so the impugned order was not arbitrary or violative of any law. It was reiterated that respondent had to pay the cost of difference in case the petitioners were held entitled to get higher cost than what was stipulated in 1986. The trial court was found to have exercised the jurisdiction not in violation of any principle of law or perverse in any manner so the order was maintained and the revision petition dismissed. 4. In this revision petition order dated; 14-07-1999 passed by the learned IV Addl. District Judge, Srinagar has been challenged on the following grounds:- 1. The trial court over-looked all the letters written by the petitioners to respondents which required him to lift the entire quantity of the raffle yarn on cash down basis in terms of the allotment order and thus the order dated: 05-10-1998 (based on the earlier order dated: 7.3.1998) is against the record and illegal. 2. The trial court over-looked all the letters written by the petitioners to respondents which required him to lift the entire quantity of the raffle yarn on cash down basis in terms of the allotment order and thus the order dated: 05-10-1998 (based on the earlier order dated: 7.3.1998) is against the record and illegal. 2. That in the impugned order dated: 21.12.1998; the trial court has prejudged the willful dis-obedience of its order dated: 3.7.1998 when the contempt application is at the stage of leading the evidence. 3. That the trial court ignored the pleadings and arguments of the petitioners that on account of abnormal circumstances prevailing in the Valley for the last so many years, no raffle yarn is now manufactured and even then directed the supply of 200 Kgs of raffle yarn. 4. Respondent never deposited the difference of market price when the rate which was fixed at the time of the allotment and in the absence of security being given on this amount, the impugned order is perverse in the eye of law. 5. The trial court has not given a finding how the suit was maintainable when there was no subsisting contract and violation of the conditions of the allotment order in question. 5. Heard the arguments. Learned counsel appearing for the petitioner has reiterated the grounds of revision petition during his arguments and further stated that Nowshara Spinning Mill stands gutted in mysterious fire and petitioners are not producing any yarn. He has further contended that though there was no contract between the parties yet for the sake of arguments it may be taken that there was such a contract, it has frustrated due to factors beyond the control of the petitioners and they cannot be directed to supply the remaining quantity of the yam in question. He has also pressed section 21 of the Specific Relief Act in his argument by stating that the suit was not maintainable as there was no contract between the parties because the conditions of allotments order in question were not complied by the respondent. He has referred to allotment order dated: 25.10.1986 and read last-but-one clause which envisages that proper agreement deed incorporating all these terms and conditions will be executed with the parties concerned as a matter or routine/procedure and after fulfilling the due procedural formalities. He has referred to allotment order dated: 25.10.1986 and read last-but-one clause which envisages that proper agreement deed incorporating all these terms and conditions will be executed with the parties concerned as a matter or routine/procedure and after fulfilling the due procedural formalities. The draft/agreement to be executed should be vetted by the legal advisor of the Jammu and Kashmir Industries�. In the last clause of this allotment order it is stated that in case the supply has to exceed 5000 Kg of yarn the supply is to be made at bulk rate of Rs.111/- per Kg; ex-spinning mill Nowshara basis against cash down payment terms. According to the learned counsel there is a breach of these two salient conditions of the allotment order and no equitable relief can be granted in favour of the respondent. Concluding his arguments the learned counsel stated that allotment order is dated: 25-10-1986 and the respondent filed the suit on 10-09-1987. He waited for more than eight months by not raising any finger regarding the deficient supply of raffle yarn because he was a defaulter in making the cash down payment and lifting the quantity in bulk but when there was a hike in the price he knocked the doors of the court. The trial court ignored the contents of the communications dated: April 30, 1990, 11-07-1990 and 11-12-1990 which specifically state that he had to lift the remaining quantity of the yarn against cash payment. The respondent cannot get the main relief which he claimed in the suit by way of interim directions. 7. The learned counsel for the respondent controverted these arguments by stating that first round of litigation on the basis of the interim relict granted on 07-03-1988 ended when the revision petition was dismissed by this court on 27-07-1989. Thereafter, respondent herein on 23-09-1989 and 28-09-1989 submitted the requisite undertaking before the trial court in compliance to the directions. The plea of non-maintainability of the suit was decided finally by this court, vide order dated: 27-07-1989 when it was held that the trial court had acted legally and within its jurisdiction to grant temporary injunction. In the order dated: 07-03-1988, petitioners were directed to supply 200 Kgs of raffle yam, the price whereof stood deposited in the court and the supply had to be made within ten days. In the order dated: 07-03-1988, petitioners were directed to supply 200 Kgs of raffle yam, the price whereof stood deposited in the court and the supply had to be made within ten days. This order has not been complied till date and this is a willful violation of the court orders and law requires lawful orders passed by the court to be complied with. On 19-07-1991, one officer on behalf of the petitioner appeared before the trial court and sought opportunity to supply the required yarn in the quantity of 200 Kgs. The trial court has held that the amount of security deposited of Rs, 20.000/- is more than the market price and on this basis it cannot be said that compliance of the court directions have not been shown. The impugned orders do not fall within the categories of case decided as envisaged under section 115 CPC. 8. After considering the respective contentions of the counsel for the parties and going through the contents of the order dated; 27-07-1989 passed by this court in Civil Revision No. 166/1988 it can safely be said that the plea with regard to the attraction of section 35 or 73 of the Contract Act now does not survive as already this court has considered it and given the findings thereon. Already it has been held that respondent has a prima facie case because various questions of law and facts are required be settled regarding the fulfillment of the conditions of the allotment order in question. However, it has not been determined that there is any contract subsisting between the parties. On these admitted facts the controversy has to be viewed whether the trial court has acted illegally or committed material irregularity in the procedure of the trial which has effected the ultimate decision arrived at. When order dated: 07-03-1988 was under challenge in appeal, the appellate court in its decision had directed the trial court to determine the market rate of the raffle yarn. This court while deciding the revision petition had ratified this direction. When order dated: 07-03-1988 was under challenge in appeal, the appellate court in its decision had directed the trial court to determine the market rate of the raffle yarn. This court while deciding the revision petition had ratified this direction. The trial court did not address itself on this salient feature and in a casual manner directed in terms of the impugned order dated: 05-10-1998 to implement its earlier order dated: 07-03-1988 by initially supplying 200 Kgs of raffle yarn for which the respondent had already deposited the price within a period of ten days from the receipt of the order. After the supply of 200 Kgs was made and received by the respondent he had to deposit the price of the remaining quantity within a period of seven days. In the earlier order dated; 07-03-1988, the petitioners herein were directed to supply the balance of raffle yarn at the stipulated rate of Rs. 111/- per Kg, pending disposal of the suit. Since the trial court has failed to determine the market price of the yarn in compliance to the directions of the superior courts before ordering the supply in terms of the impugned order dated: 05-10-1998 it is an error of procedure in the course of the trial effecting materially the ultimate decision. The order as such has caused miscarriage of justice. The other impugned order dated: 21-12-1998 has been passed in hot haste whereby the accounts of the petitioners have been attached without ascertaining the fact whether there was willful dis-obedience because the evidence was yet to be led which is evidenced from the order dated: 05-10-1998 wherein it is stated that regarding the contempt plaintiffs are at liberty to lead further evidence. For this purpose they shall make an application before this court within seven days�. The impugned order dated: 21-12-1998 does not contain any reference to the evidence on the record and is thus found an order passed on the basis of no evidence which is perverse in its nature. 9. Undoubtedly this court while deciding revision petition No. 166/88 has held that respondent herein has a prima facie case but this finding does not encompass the basic controversy whether the terms of the allotment order could be enforced when preliminary objection was there but they were breached by the respondents. 9. Undoubtedly this court while deciding revision petition No. 166/88 has held that respondent herein has a prima facie case but this finding does not encompass the basic controversy whether the terms of the allotment order could be enforced when preliminary objection was there but they were breached by the respondents. There is no record that in pursuance of the direction of the allotment order in question agreement was executed between the parties. In case the respondents had not fulfilled the conditions of the allotment order how a contract could come into existence. A trampelled or breached allotment order cannot be enforced with the aid of the interim court orders. The maintainability of the suit is a sine-qua-non before any direction is given or order is passed by the court. This court has not expressed any opinion to the effect that respondent had a prima facie case even in the absence of any contract between the parties. Preliminary objection was raised by the petitioners in their written statement before the trial court that respondent had not filed any document from which it could be ascertained that any contract existed between the parties. The alleged breach of allotment order is a question of fact as has been held in the order dated: 27-07-1989 passed in the revision petition No. 166/1988 to be tried after issues are framed but existence of valid contract between the parties was a sine-qua-non and regarding that aspect of the case no opinion has been expressed by this court. This is a legal question which goes to the root of the case and its notice can be taken while exercising the revisional jurisdiction. Hence, the revision petition is accepted arid the impugned orders are quashed. Direction is given to the trial court that before any order is passed it will address itself to the material aspect whether there was any subsisting valid contract between the parties, the breach whereof could give a cause of action to the respondent for filing the suit. The counsel for the parties are directed to appear before the trial court on 15-05-2000.