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2010 DIGILAW 360 (MP)

F. F. (I). L. C. 16/3 v. Supreme Engineers

2010-03-25

PRAKASH SHRIVASTAVA

body2010
ORDER Prakash Shrivastava, J. 1. Heard on the question of admission. THIS appeal under order 43 Rule 1(r) of the Code of Civil Procedure has been filed against the order dated 9th March 2010, passed by the Trial Court, granting interlocutory mandatory injunction in favour of the Respondent. 2. The brief facts are that the Respondent (Plaintiff) had filed the Civil Suit No. 49-A/2009 pleading that the Appellant was awarded contract from Bharat Oman Refinery Limited (for short 'BORL') for carrying out the contract work. The Appellant had entered into an agreement with the Respondent on 13th April 08. In terms of this agreement certain facilities were to be provided by the Respondent and some of the facilities were to be provided by the Appellant for completing the work awarded by 'BORL to the Appellant. It is alleged that the Appellant committed certain irregularities and did not make the payment to the Respondent within time and alloted part of the work of the Respondent to a third party, therefore, the Respondent filed the present suit seeking the relief of settling the accounts in terms of the contract, and restraining the Appellant from awarding the contract to a third party and other similar reliefs including the relief of direction to the Appellant to hand over the machinery and equipments to the Respondent. 3. The suit was opposed by the Appellant by submitting the written statement and denying the allegations made in the plaint and taking the plea that the Respondent did not execute the work in terms of the agreement, therefore, after giving notice, the contract was terminated on 13.3.08. 4. The Respondent had also filed an application under Order 39 Rule 1 Code of Civil Procedure, in the suit pleading that the machinery and equipments of the Respondent are lying at the site, which are being used by the Appellant causing enormous loss to the Respondent. It was alleged that without issuing the gate pass by the Appellant the Respondent cannot remove the machinery and equipments, consequently the relief of interlocutory mandatory injunction was sought for issuing direction to the Appellant to issue gate pass to the Respondent. 5. It was alleged that without issuing the gate pass by the Appellant the Respondent cannot remove the machinery and equipments, consequently the relief of interlocutory mandatory injunction was sought for issuing direction to the Appellant to issue gate pass to the Respondent. 5. The Appellant filed reply to the application under Order 39 Rule 1 Code of Civil Procedure, taking the stand that the machinery and equipments of the Respondent are not being used by the Appellant on the site and further that since the Appellant has suffered loss due to the negligence of the Respondent, therefore, the machineries have been kept as security which will be returned after the final settlement of accounts. 6. The Trial Court by order dated 9th March 2010, allowed the application under Order 39 Rule 1 and 2, filed by the Respondent and directed the Appellant to take steps for granting permission to the Respondent for taking the machinery and equipments. The Trial Court found prima facie case in favour of the Respondent and that under the contract the Appellant has no right to retain the machinery and equipments and considering the prima facie case, balance of convenience and irreparable injury the Trial Court passed order of interlocutory mandatory injunction in favour of the Respondent. 7. Learned Counsel for the Appellant, submitted that the temporary injunction in mandatory form can be granted only in rarest of the rare case and this is not one of such case. He further, submitted that it is a case of bailment covered under Section 148 of the Contract Act (for short 'the Act'), therefore under Section 160 and 170 of the Contract Act the Appellant has right to retain the goods. He submitted that the suit filed by the Respondent is not properly valued and proper Court fee has not been paid, therefore the temporary injunction could not be granted to him and that the Trial Court has committed an error in granting final relief at the interim stage. 8. Learned Counsel appearing for the Respondent submitted that, since the Appellant has no right to retain the machinery and equipments, therefore it is one of those cases were temporary injunction in mandatory form has rightly been granted by the Trial Court. 8. Learned Counsel appearing for the Respondent submitted that, since the Appellant has no right to retain the machinery and equipments, therefore it is one of those cases were temporary injunction in mandatory form has rightly been granted by the Trial Court. He further submitted that it is not a case of bailment, since the possession was not handed over to the Appellant and that in view of the averments contained in the plaint and nature of the suit, proper Court fee has been paid and no error has been committed by the Trial Court in passing the order of temporary injunction in mandatory form. 9. I have heard learned Counsel for the parties and perused the record. 10. It is the settled position in law that while granting interlocutory mandatory injunction the Court is required to see that the Plaintiff has a strong case for trial i.e. it should be of a higher standard than the prima facie case which is normally required for temporary injunction and it is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money and the balance of convenience should be in favour of the one who is seeking such a relief. The Interlocutory mandatory injunction is essentially the equitable relief which is to be decided by the Court on the basis of sound judicial discretion to be exercised in the fact situation in a particular case. Though exercise of such a discretion is limited to rare and exceptional cases but there is no absolute bar to the Court in granting such a relief in deserving cases. Whether or not a case comes in the category of rare and exceptional one, is to be decided according to the facts and circumstances of the case. Such an order of temporary injunction can be granted on an interlocutory application after notice to the Defendants and after hearing the parties. 11. The aforesaid position in law is supported by the judgments in the matter of Dorabji Warden v. Sorab Warden 1990 (2 SCC) 117, Mrs. Vijay Shrivastava v. Rahul AIR 1988 Delhi 140, Baban Narayan Landge v. Madhu Bhikaji Tonchar and Ors. AIR 1989 Bom 247 and Indian Cable Company Limited v. Smt. Sumitra Chakroborty AIR 1985 Cal 248 . 12. The facts of the present case needs to be examined in the light of the aforesaid position in law. 13. Vijay Shrivastava v. Rahul AIR 1988 Delhi 140, Baban Narayan Landge v. Madhu Bhikaji Tonchar and Ors. AIR 1989 Bom 247 and Indian Cable Company Limited v. Smt. Sumitra Chakroborty AIR 1985 Cal 248 . 12. The facts of the present case needs to be examined in the light of the aforesaid position in law. 13. In the present case the agreement dated 13.3.08 was executed between the parties. In pursuance to the agreement the Respondent had deployed the machinery and equipments at the site and it was also the responsibility of the Respondent to deploy sufficient number of skilled workmen and supervisors to commence the job. No clause of the agreement indicates that the possession of machine and equipments was handed over by the Respondent to the Appellant. 14. Learned Counsel appearing for the Appellant could not point out from the contract agreement that in terms of the agreement the Appellant had any right to retain the machinery and equipments deployed by the Respondent at the site. He also could not point out that after terminating the contract machinery and equipment could be retained in terms of the agreement. Thus, it is prima facie found that the Appellant has no right to retain the machines and tools of the Respondent yet the Appellant is keeping them in his possession without any authority by not issuing the gate pass to the Respondent for taking out the machinery and equipments. The ownership of the Respondent on the machines and tools is not in dispute. 15. Under Section 148 of the Contract Act, the bailment has been defined as delivery of goods by one person to another for some purpose, upon a contract that they will, when the purpose is accomplished, be returned or otherwise disposed of according to the directions of the person delivering them. In the present case a perusal of the contract agreement between the parties indicates that the conditions of bailment as contained in Section 148 of the Act are not satisfied. Therefore, the argument of the learned Counsel for the Appellant that in terms of Section 160 or of the Act he has right to retain the machines and equipment of the Respondent cannot be accepted. 16. The Trial Court has noted that the machinery and equipments lying at the site unused are getting spoiled and loosing their value. Therefore, the argument of the learned Counsel for the Appellant that in terms of Section 160 or of the Act he has right to retain the machines and equipment of the Respondent cannot be accepted. 16. The Trial Court has noted that the machinery and equipments lying at the site unused are getting spoiled and loosing their value. The final disposal of the suit may take some time. Considering the nature of machines and equipments and the controversy involved between the parties, it may not be possible to compensate the Respondent if the machines and equipments are destroyed or damaged if kept laying at the site. 17. Thus, the aforesaid circumstances indicates that the Respondent has a very strong prima facie case in his favour. 18. So far as the issue of Court fee is concerned the Trial Court has rightly noted that the original suit of the Respondent is not in respect of the property but the settlement of account, in terms of the agreement. Therefore, the suit is not required to be valued on the basis of the valuation of the property. 19. So far as the issue of granting final relief at the interim stage is concerned the Respondent had claimed several reliefs in the plaint and one of the relief claimed is in respect of return of the machines and equipments retained at the site. While issuing the interlocutory mandatory injunction of such a nature final relief at the interim stage can be granted, looking to the strong prima facie case in favour of the party concerned and considering the possibility of his success in the suit in respect of the relief which is granted at the interim stage. 20. The judgments in the matter of Public Services Tribunal Bar Association v. State of U.P AIR 2003 SC 115, relied upon by the Appellant is distinguishable on facts since it relates to grant of stay by Tribunal in service matters. 21. Thus, in view of the aforesaid the Trial Court has not committed an error in granting interlocutory mandatory injunction, since it is one such exceptional case where considering the equitable circumstances the Respondent is entitled for relief of such a interlocutory mandatory injunction. 22. In view of the aforesaid, the appeal is dismissed. No order as to costs.