ORDER : This writ petition has been preferred by first defendant in O.S.No.6609/2013 being aggrieved by order dated 04.03.2016 –Annexure-A whereunder I.A.No.2 filed by the II defendant under Order XXXIX Rule 7 read with section 151 CPC seeking for appointment of a Court commissioner to remove the 10 tonne capacity Hydra Crane from the site –Trident Hotel wherein the first defendant is said to have been carrying out work in the precincts of Bangalore International Airport Limited, has been allowed partly by directing the writ petitioner - first defendant to shift said Hydra Crane within 08.03.2016. 2. Parties are referred to as per their rank in the trial Court and facts in brief which has lead to filing of this writ petition can be crystalised as under: 3. First respondent herein is the plaintiff in O.S.No.6609/2013 and said suit came to be filed against writ petitioner-first defendant and second respondent-second defendant for recovery of a sum of Rs. 3,34,000/- from first defendant and for a direction to the second defendant to immediately release the crane of the plaintiff which is in the custody of second defendant as security towards the outstanding amount due to them from first defendant company. On service of suit summons both the defendants have appeared and have contested the matter. First defendant has filed the written statement traversing the plaint averments and denying the same except to the extent of admission made therein. 4. During the pendency of the suit, second defendant filed an application under Order 39 Rule 7 CPC read with Section 151 CPC Annexure-R for appointment of a Court Commissioner to remove the 10 tonne capacity Hydra crane from the Trident Hotel site whereon the first defendant has been carrying on its work, situated in the precincts of Bangalore International Airport Limited and to preserve the same in the custody of the Court or to deliver the same to the plaintiff on such terms. First defendant filed a memo Annexure-Q on 16.10.2015 indicating thereunder that it has no objection for the crane being handed over by second defendant to plaintiff since second defendant is in possession of the construction site where the subject crane is presently located. 5. Trial Court by order dated 16.10.2015 permitted the removal of said crane by plaintiff from the building site of second defendant. 5. Trial Court by order dated 16.10.2015 permitted the removal of said crane by plaintiff from the building site of second defendant. However, plaintiff did not take steps to remove the crane from the building site of second defendant on the ground that defendants have to bear the costs of Rs. 25,000/- to shift the crane of plaintiff from work site of second defendant. Thereafter, plaintiff filed an application seeking for a direction to first defendant to pay a sum of Rs. 25,000/- towards cost of shifting of the said crane from the building site of second defendant. Said application came to be dismissed by order dated 10.12.2015. 6. In the meanwhile, I.A.No.2 which had been filed by the second defendant on 17.03.2015-Annexure-R which was pending came to be adjudicated and disposed off by the impugned order dated 04.03.2016-Annexure-A, directing the first defendant to shift the schedule crane within 8th March, 2016 from Trident Hotel site. 7. I have heard the arguments of Sri. Appaiah P.B., learned Advocate appearing for petitioner, Sri. K.N. Balaraj along with Srirajan Basha for first respondent-caveator and Sri. G.R. Anantharam for second respondent. Perused the records. 8. It is the contention of Sri P.B. Appaiah, learned Advocate appearing for petitioner that impugned order is erroneous since the relief granted is different from the relief sought for by second defendant in the application – I.A.No.2 which was for appointment of Court Commissioner to remove the crane for being delivered to plaintiff. He would further contend that trial Court erred in the interpretation of e-mail dated 21.11.2011 (wrongly referred to as 24.12.2011) despatched by first defendant to plaintiff and as such, it is liable to be rejected. He would also contend that it was not the responsibility and liability of first defendant to bear the costs and expenses of transporting of two cranes from the place of location where cranes were being used. On these grounds, he seeks for impugned order being set aside. 9. Sri G R Anantharam, learned Advocate appearing for second respondent – second defendant would submit that second defendant did not have any transaction with the plaintiff and there is no privity of contract between the said parties and the very maintainability of the suit is questioned. On these grounds, he seeks for impugned order being set aside. 9. Sri G R Anantharam, learned Advocate appearing for second respondent – second defendant would submit that second defendant did not have any transaction with the plaintiff and there is no privity of contract between the said parties and the very maintainability of the suit is questioned. It is also contended that second defendant had entered into a contract with first defendant on 06.03.2010 for various works to be carried out at Trident Hotel site, International Airport, Bangalore and in the course of carrying out said work, first defendant had obtained the cranes from plaintiff and one of the cranes had been entrusted to the custody of the first defendant which has been lying at the site of second defendant which has to be received by first defendant. It is contended that since February, 2012 second defendant has been reminding the first defendant to remove the same and same having not been removed, it would be the responsibility of first defendant to remove the materials and equipments which had been brought to site for carrying out the assigned work and neither second defendant nor L & T Bangalore Hotel Airport Ltd had any transaction with the plaintiff and when plaintiff has no claim over the second defendant, it is the first defendant who will have to receive the crane. On these amongst other grounds, second defendant has sought for dismissal of writ petition. FINDING RECORDED BY THE TRIAL COURT: 10. A perusal of the impugned order would indicate that the contract for supply of the crane by the plaintiff to the first defendant is construed as their being in existence a privity of contract between these two parties and it has arrived at a conclusion that the suit in question pertains to crane charges sought to be recovered by the plaintiff from the first defendant and as such it has concluded that it would be inappropriate for the plaintiff to bear the charges to shift the crane from the present site where the crane is situated. On this ground the trial Court has opined that it is the first defendant who has to shift the crane to their factory and first defendant alone has to incur the expenses. On this ground the trial Court has opined that it is the first defendant who has to shift the crane to their factory and first defendant alone has to incur the expenses. Accordingly it has issued a direction to first defendant to shift the crane in question from the Trident Hotel Site to the factory of the first defendant. 11. First defendant obtained a contract from second defendant to carry out certain works at the building site of second defendant and in this connection, first defendant approached the plaintiff for handing over two cranes of which one was to be placed at Dabuspet factory namely, the factory of first defendant and another crane was to be placed at the site of work of second defendant at Devanahalli. On work order being placed by the first defendant with plaintiff indicating the requirement of two cranes, plaintiff supplied two cranes to the first defendant – company pursuant to the Work Order dated 06.08.2010. It was agreed between the first defendant to pay the plaintiff ‘crane rental charges’ as indicated in the Work Order. During February, 2012 second defendant informed the first defendant to suspend the works at the building site and accordingly the work came to be stopped by the first defendant. Thereafter, first defendant requested the plaintiff to withdraw both the cranes which had been supplied by the plaintiff on hire charges. By e-mail dated 28.02.2012 – Annexure-E plaintiff agreed to withdraw both the Hydra cranes, subject to outstanding payment being cleared. Thereafter, a sum of Rs. 2,35,015/- has been paid by the first defendant to plaintiff claiming to be in full and final settlement. In fact, plaintiff by their communication dated 07.07.2012 – Annexure-G have acknowledged receipt of the amount and have stated that there is no balance payment from the first defendant. Thus, the plaintiff ought to have removed the cranes as agreed to by them. 12. Thereafter plaintiff has withdrawn one crane situated at the first defendant’s factory – Dabuspet. However, the other crane which was at the site of second defendant was not removed and on plaintiff approaching the second defendant, it was informed by the second defendant that certain amounts are due from first defendant and as such, the second crane would not be released in favour of the plaintiff. However, the other crane which was at the site of second defendant was not removed and on plaintiff approaching the second defendant, it was informed by the second defendant that certain amounts are due from first defendant and as such, the second crane would not be released in favour of the plaintiff. Several attempts are said to have been by the plaintiff to get the second crane released, which did not materialize. It is thereafter plaintiff has claimed the crane hire charges from the first defendant and on account of said demands of the plaintiff having not been met by first defendant, plaintiff got issued a notice on 03.06.2013 demanding crane hire charges. The claim of the plaintiff came to be denied by first defendant. Hence, plaintiff has instituted the suit for recovery of Rs. 3,34,000/- from first defendant and a direction has also been sought against second defendant to release the crane in their custody. Thus, undisputedly, second crane is lying at the site of the second defendant. 13. Plaintiff having not taken any further steps in this regard namely, to withdraw the crane from the site of second defendant, the said crane continued to lie at the site of the second defendant. However, by communication dated 17.03.2013 – Annexure-H, plaintiff informed the first defendant about the crane lying at the building site of second defendant having not been removed and claimed the hire charges. When the plaintiff by its communication dated 07.07.2012 addressed to the first defendant had acknowledged the receipt of Rs. 2,31,015/- and had informed the first defendant that there is no balance payment due from first defendant and first defendant having informed the plaintiff to remove the crane or take back the crane from the site of second defendant, ought to have taken steps in that regard. For reasons best known, plaintiff did not take steps to remove the crane from the site of second defendant. 14. As to whether the plaintiff would be entitled to recover monies due from first defendant on account of crane having not been removed from the site of second defendant is an issue at large in the pending suit. As to whether the first defendant has paid all the monies due to the plaintiff or not is also an issue which requires to be adjudicated in the pending suit. As to whether the first defendant has paid all the monies due to the plaintiff or not is also an issue which requires to be adjudicated in the pending suit. Further, as to whether the second defendant prevented or prohibited the plaintiff from removing the crane from its site and thereby the plaintiff was unable to take custody of the crane in question would also require to be adjudicated in the pending suit. Now, at this stage, if any opinion is expressed on these aspects by this Court, it would definitely prejudice the rights of the parties in the pending suit. Hence, no opinion is expressed in this regard. 15. Records would indicate that on a memo being filed by first defendant on 16.10.2015 indicating thereunder that it has no objection for the subject crane being handed over by second defendant to the plaintiff, an order came to be passed by the trial Court permitting the plaintiff to remove the crane from the site of second defendant. However, for reasons best known, plaintiff did not take steps to remove the crane from the site of second defendant. However, plaintiff did not take steps to remove the crane on the ground that it is in a dilapidated condition, first defendant has to bear the transportation charges and also on the ground that second defendant is not permitting the removal of the crane from its building site. In fact, plaintiff has filed an application I.A.No.5 for a direction to the defendants to pay a sum of Rs. 25,000/- towards the cost of shifting the said crane from the building site of second defendant. Said application has been dismissed by an order dated 10.12.2015 – Annexure-R10 on the ground for determination of the prayer sought for therein, evidence is to be recorded. 16. Records would also indicate that plaintiff is refusing to shift the crane from site of second defendant on the ground that it has now become dilapidated and heavy expenditure is to be incurred and also charges towards transportation has to be expended by it. Plaintiff has also taken a stand that since the crane is lying at the site of second defendant which crane had been brought at the instance of first defendant and second defendant is not permitting the plaintiff to shift the crane. Plaintiff has also taken a stand that since the crane is lying at the site of second defendant which crane had been brought at the instance of first defendant and second defendant is not permitting the plaintiff to shift the crane. On the other hand, first defendant is refusing to shift the crane on the ground that plaintiff itself had agreed to shift the crane from the site of second defendant and by its communication dated 07.07.2012 had admitted that there was no balance payment and now it is demanding payment from first defendant for shifting the crane, which is not liable to be paid by first defendant. 17. As already noticed herein above, these facts being disputed questions of fact are required to be resolved after full fledged trial. The moot question would be, who has to remove the Hydra Crane from the site of second defendant? The very prayer sought for in the plaint (second prayer) by the plaintiff is to direct the second defendant to immediately release the crane in its favour (plaintiff). Undisputedly, the subject crane belongs to the plaintiff. On account of its non-use, whether said crane has become obsolete and any expenditure is required to be incurred by the plaintiff is a matter which requires to be adjudicated. This Court is of the view that ends of justice would be met if plaintiff is directed to remove the subject crane from the site of second defendant since plaintiff is the owner of it, after obtaining a report from a Chartered Engineer with regard to its status and condition as on said date. 18. In the light of the above findings recorded, this Court is of the considered view that the trial Court was not correct in directing the first defendant i.e., writ petitioner to shift the crane in question and as such, the impugned order cannot be sustained. Hence, I proceed to pass the following: ORDER (1) Writ petition is hereby allowed. (2) Order dated 04.03.2016 passed in O.S.No.6609/2013 by XIV Addl. City Civil Judge, Bangalore – Annexure-A is hereby set aside. (3) I.A.No.2 filed under Order 39 Rule 7 CPC by second defendant is disposed of by directing the plaintiff to shift the Hydra Crane within three weeks from today, which would be subject to observations made herein above. (2) Order dated 04.03.2016 passed in O.S.No.6609/2013 by XIV Addl. City Civil Judge, Bangalore – Annexure-A is hereby set aside. (3) I.A.No.2 filed under Order 39 Rule 7 CPC by second defendant is disposed of by directing the plaintiff to shift the Hydra Crane within three weeks from today, which would be subject to observations made herein above. (4) In the event of plaintiff failing to shift the crane within three (3) weeks, second defendant would be at liberty to shift the same after obtaining a report from a Chartered Engineer with regard to status and condition of the Hydra Crane and by submitting the said report to the trial Court and second defendant would be entitled to recover the expenditure that may be incurred in this regard from plaintiff and first defendant jointly and severally. (5) In the peculiar circumstances of the case, there is no order as to costs. Ordered accordingly.