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2002 DIGILAW 1274 (JHR)

Central Coalfields Ltd. v. Jugnu Construction

2002-12-17

M.Y.EQBAL

body2002
ORDER M.Y. Eqbal, J. 1. This appeal is directed against the order dated 22.5.2002 passed by 3rd Sub Judge, Bermo at Tenughat in money suit No. 2/2002 by which he has allowed the application filed by the defendant-respondent under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure and issued temporary injunction in mandatory form directing the appellant to allow them to lift the ash contents/remains of the briquettes which is lying in the premises of the appellant. 2. This case has a checked history. In the year 1982 a contract was entered into by and between the appellant and the respondents whereby a work order was issued in favour of the respondent for dispatch of slurry after converting into briquettes within the premises of the appellant on certain terms and conditions including payment of royalty, cess, sales tax, excise duty etc. A dispute arose with regard to payment of cess and royalty and a writ petition was filed by the respondent being CWJC No. 1232/98(R). The writ petition was dismissed by this Court holding that the respondent had agreed to pay, cess, royalty etc. The respondents preferred special leave petition before the Supreme Court being SLP No. 9365/89. In that appeal a interlocutory application was filed by the respondents seeking permission of the Court for removal of Ash. The Supreme Court vide order dated 25.4.1990 permitted the respondent to remove the Ash from the property of the appellant subject to the condition that all the removal should be duly accounted for by measuring the quantity and by furnishing cash amount of Rs. 10 lakhs or bank guarantee of a nationalized bank. The said special leave petition was converted into Civil Appeal No. 3778/89 and the same was ultimately dismissed on 30.4.1991. The Supreme Court while disposing of the Civil Appeal directed both the parties to appear before this Court for adjudication of the dispute relating to the amount of sale of the slurry. On remand the learned Single Judge of this Court vide order dated 11th March, 1998 held that the dispute could not be adjudicated upon by the High Court in a proceeding under article 226 of the Constitution of India. The matter again went to Supreme Court in SLP No. 312/92. The special leave petition filed by the respondents was dismissed on 28.1.1999. The matter again went to Supreme Court in SLP No. 312/92. The special leave petition filed by the respondents was dismissed on 28.1.1999. In the meantime the Financial Directors of the appellant company in a decision taken in its 7th meeting, in respect of the proposal for arriving at a price to be charged for lifting ash after manufacture of briquettes modified their earlier decision and decided for the recovery of the price of the ash. In view of the said decision the appellant filed interlocutory application being IA No. 5, in the Supreme Court for a direction for the recovery of the amount from the respondent. The Supreme Court dismissed the IA No. 5 filed in Civil Appeal No. 3778/89 but held that the respondents shall be free to take steps for the purpose of recovery of the amount. The plaintiff thereafter filed the instant suit being money suit No. 2/2002 for the recovery of a sum of Rs. 3,96,734,55.87 along with Interest and mesne profit. In the said suit issues were framed and hearing of the suit commenced and plaintiff appellant examined few witnesses. In the meantime the defendant respondent filed a petition purported to be under Order XXXIX, Rules 1 and 2 read with Section 151, CPC praying therein that they may be allowed to collect and remove the material (ash) from the site and restrain the appellant from interfering with that such removal. The plaintiff appellant opposed the said application by filing rejoinder. The Court below after hearing the parties allowed the application and allowed mandatory injunction restraining the appellant from interfering with the removal of ash/slurry by the defendant from the site, hence this appeal. 3. Mr. M.M. Banerjee learned counsel appearing for the appellant assailed the impugned order as being illegal and wholly without jurisdiction. Learned counsel submitted that the court below has committed serious error of law in allowing the application of the defendant respondent and granting mandatory injunction without applying the correct proposition of law with regard to grant of injunction. 4. Mr. Binod Poddar on the other hand submitted that the Ash being a perishable commodity if kept in the site may be washed away by rain and the accountability and liability for payment of price of the commodity is still to be decided. Learned counsel submitted that the court below rightly granted mandatory injunction. However, Mr. 4. Mr. Binod Poddar on the other hand submitted that the Ash being a perishable commodity if kept in the site may be washed away by rain and the accountability and liability for payment of price of the commodity is still to be decided. Learned counsel submitted that the court below rightly granted mandatory injunction. However, Mr. Poddar submitted that the defendant respondent is ready to furnish Bank guarantee for the value of the ash to be removed by the defendant and in this way no irreparable injury will be caused to the appellant. 5. Before appreciating the rival contention of the parties I would first like to quote the relevant portion of the impugned order passed by the Court below. The reasons assigned by the court below in the impugned order is re-produced herein below. "It is an admitted position that Honble Supreme Court under order dated 25.4.1990 permitted the defendants to remove Ash from the site subject to conditions that all such removal would be duly accounted for by measuring the quantity and by way of security for satisfying the claim this defendants were directed to deposit in a cash amount of Rs. 10 lac within seven days of said order which has been complied. It is also admitted position that on the basis of said order the defendants were not only permitted to remove the Ash from plaintiff premises rather started removing the said Ash from the site. Perusal of the plaint, W.S. counter affidavit and W.S. filed by the plaintiff C.C.L. company it also appears that on 11.3.1998 an order has been passed in CWJC No. 1232 of 1988 which was after the removal in which the defendants filed in amendment petition in original writ petition for making a prayer or direction to C.C.L. to allow the petitioner to carry ash from premises of C.C.L. and as it appears from contents of Judgment that as amount is no specified so. There cannot be any order from Court of Law to give unspecified and unlimited order of carrying lifting of Ash fines briquettes and particularly when there is nothing on record about it has been observed that as agreement has came to in and in the year 1998 and Ashes are being carried since 1991 and for a long seven years carried Ash and fines of briquetted so in the manner the said prayer of defendants were rejected. It also appears that defendants filed LPA No. 153/98 which was also dismissed under order dated 25.9.1998. Now it is submitted by the defendants that prayers of defendants were not considered in the said CWJC No. 1232/88 inspite of specific order of Honble Supreme Court as there was no statement regarding quantity of Ash Fines lying on the site of defendants during contract period and not was reason for dismissal of LPA also so infact the order of Honble Supreme Court for removal of Ash from the site during contract period after depositing cash amount of Rs. 10 lac are still in existence and having a force of law as agreed by learned counsel of defendants. The defendants were permitted to remove the said Ash from the premises of plaintiff as defendant have paid the amount in lieu of purchase slurry and the Ash which is residue of slurry lying within premises of C.C.L. So defendants are entitle to remove being entire property as per the agreement, so far ownership and the value of Ash and slurry as well as the marketable value of the residue after conversion from slurry to briquettes are subject matter of the present suit which was to be decided in due course after adducing evidence in respect of claim and counter claim of parties. The matter regarding decision taken by Functional Director of plaintiff particularly regarding price to be charged for lifting of said Ash is also matter sub-judice which has to be particularly regarding its validity but one thing is very clear that said order of Honble Supreme Court since May 1991 as per admitted statement 57325.326 M.T. has already been removed and in the manner 22675 M.T. of the Ash contents are lying at the site of defendants after which there is no dispute. It has also been agreed by referring Judicial Pronouncement in AIR 1978 Goa 46 that mandatory injunction can be passed under Order XXXIX, Rules 1 and 2, CPC and there is not bar to the Court in granting interim relief in mandatory form and in this respect it is urged on behalf of learned counsel for defendants that court has to act and exercise power according to fact and circumstances of case surrounding to it is the ownership is still in dispute as the main defence of defendants is that they had paid all the amount in favour of purchase of the slurry lying within premises of C.C.L. On the other hand it is case of plaintiff that as the terms of tender the defendants was allowed to dispatch slurry of briquettes within premises of plaintiff and convesion factor shall be taken as 1.50 tones of slurry for one ton of briquettes and in this regard this case of the plaintiff that such residuary is not property of defendants as defendants was entitle only to take briquettes on being manufactured from slurry and briquettes price is being fixed at a price of 1.50 tones of slurry as price of briquettes. So in the manner it is stated that price was fixed by conversion table and the above matters are required a fullfledged evidence and hearing on the point of law corroborated with cogent evidence but one thing is very apparent that still huge quantity of Ash lying on the site which as per defendants submission is deteriorating day by day as same is being effected by rainy seasons, and calamity and such compelling circumstances is no doubt comes within the terms rare and exceptional case. So there is prima facie case of defendants as per counter claim and above all discussion. Thus balance of convience lies in favour of petitioner so that if defendants has got no interim relief then they are facing heavy irreparable loss and under such discussion there can be no hesitation to say that defendants are entitle to get mandatory injunction as prayed for and their petition is allowed." 6. Thus balance of convience lies in favour of petitioner so that if defendants has got no interim relief then they are facing heavy irreparable loss and under such discussion there can be no hesitation to say that defendants are entitle to get mandatory injunction as prayed for and their petition is allowed." 6. From perusal of the order of the Court below quoted herein above, it is clear that the court below has taken notice of the order dated 25.4.1990 passed by the Supreme Court permitting the respondents to remove the Ash from the property of the appellant subject to furnishing cash amount or Bank guarantee of Rs. 10 lacs. However, the court below failed to take notice of the Supreme Court order dated 30th April 1991 in IA No. 4 in Civil Appeal 3778/89 which was passed on the petition filed by the respondents stating that although full price for the slurry supplied to them under the contract was paid, they are not being permitted to remove the ash from the site of the appellant. The Supreme Court finding that there was serious dispute and controversy about the facts relating to the amount of sale of slurry the matter was remitted back to the High Court for final determination of the liability. On remand, the High Court dismissed the writ petition holding that when the agreement is silent regarding any residuary then there cannot be any claim on the Ash or Fines of the briquettes left out after the briquettes is prepared. The said judgment was affirmed in the Letters Patent Appeal filed by the respondent. Perhaps the court below while holding the prima facie case of the defendant-respondent has failed to consider the findings recorded by this Court in the writ petition filed by the respondent which was ultimately dismissed. The court below further committed serious illegality in recording the finding on the merit of the case in holding that the defendants were permitted to remove the Ash from the premises as they have paid the amount in lieu of purchase of slurry and the Ash which is residue of the slurry. 7. An injunction is a judicial process whereby the party is required to do or to refrain from doing any particular act. Its main purpose is to preserve the subject matter of the suit in status quo for the time being. 7. An injunction is a judicial process whereby the party is required to do or to refrain from doing any particular act. Its main purpose is to preserve the subject matter of the suit in status quo for the time being. The relief for injunction is an equitable discretionary relief. This discretion, however, should be exercised in accordance with reason and of sound judicial principles. 8. Curiously enough the court below has granted temporary injunction in mandatory form allowing the defendant-respondent to lift the Ash from the premises of the appellant without putting any condition when the Supreme Court while granting a similar relief put a condition upon the respondents to deposit a cash amount of Rs. 10 lacs. In the second round of litigation when the matter went to the Supreme Court in another special leave petition a similar relief was again sought for by the respondents for removal of Ash, but the Supreme Court instead of passing order on the interlocutory application filed by the respondent dismissed the same and remitted the matter to this court for determination of liability in the writ petition which was filed by the respondents. Besides the above the court below has committed serious error of law in deciding the question of prima facie case, balance of convenience and irreparable injury. The court below while holding these ingredients in favour of the respondents has completely failed to take notice of the findings and observations made by the High Court in the writ petition. It cannot be disputed that even if any loss or injury is caused to the defendant-respondent that too adequately be compensated in terms of money and therefore, it cannot be held that the defendant respondent will suffer irreparable injury in the event prayer for injunction is refused. Consequently the balance of convenience does not lie in favour of the respondent for the grant of injunction. The impugned order, therefore, cannot be sustained in law. 9. For the aforesaid reason this appeal is allowed and the impugned order passed by the court below is set aside. 10. Before parting with the order, I must observe that if there is any apprehension or fear of the deterioration of the ash lying on the site because of rainy season and calamity, then the court below shall give first priority in the disposal of the suit. 10. Before parting with the order, I must observe that if there is any apprehension or fear of the deterioration of the ash lying on the site because of rainy season and calamity, then the court below shall give first priority in the disposal of the suit. Since the plaintiff appellant has already examined few witnesses the court below is directed to take up the suit for further hearing by examining witnesses day-to-day and conclude the trial by 31st March 2003.