Jay Container Services Co. Pvt. ... vs S.D.S. Shipping Pvt. Ltd. And Ors.
2002 Latest Caselaw 1034 Bom

JUDGMENT

1. This appeal seeks to challenge the order passed by a learned Single Judge on 24th July 2000 on a motion taken out by the appellants (original plaintiffs) seeking a direction to the respondent No. 1 (original defendant No. 1) to deposit an amount of Rs. 81,77,632.50 by way of prayer (a). Prayer (b) sought a direction to deposit an amount of Rs. 1,78,020/- per month. Both these prayers seek withdrawal of the amounts when deposited. The motion was rejected by the learned Single Judge by his impugned order and therefore this appeal.

2. Mr. Rambhadran has appeared for the appellants and Mr. Kapadia has appeared for respondent No. 1. Though the appeal is already admitted and a motion is taken out for interim relief in the appeal, it was agreed by the counsel for both the parties that the appeal be heard finally. Accordingly we are disposing of this appeal by this order.

3. The facts leading to this appeal are as follows :--

The appellants are a private limited company engaged amongst others in the business of supply of containers for the ships to carry goods from one place to another. It is the case of the appellants that the appellants supplied containers to the respondent No. 1 from time to time. There was a lease agreement entered into between the parties for the utilisation of these containers. The agreement expired on 30th March 1996 and was extended by one month, but the containers were not returned.

4. The appellants entered into a correspondence with the respondent No. 1 and called upon them to return the containers and to pay the lease charges. The cheques given by the respondents had bounced. The respondent No. 1 by their letter dated 26th April 1996 addressed to the attorneys of the appellants informed that they were looking for a suitable vessel to bring those containers from Port Luois to Bombay. The containers were not returned. Prior to this reply, by their two communications dated 10th January 1996, they informed that some 35 of the containers could not be returned. It is stated that those containers were lost leaving a balance of 57 containers out of the total number of 92 containers. That the containers were so given on lease basis to the respondent No. I and that they were not returned is not in dispute at all. There is no communication from the respondent No. 1 to the appellant disputing the lease rental. Ultimately when neither the containers were returned nor the amounts for the lease charges were paid, the appellants filed Suit No. 4794 of 1997 seeking a sum of Rs. 1,61,13,173.14. This included the claim for non-return of the containers and the claim for the outstanding rental.

5. After the suit was filed, the appellants took out a motion, being Notice of Motion No. 378 of 1998, for Receiver and injunction for the containers which were not returned. The motion reached before a learned Single Judge and by his Order dated 11th August 1999, the learned Single Judge took the view that there was no case for appointing a Receiver for the properties by way of security for the amounts which may be due. He also held that no irreparable loss will be caused if interim relief was not granted. While rejecting this motion, however, the learned Judge granted liberty to the appellants to take out appropriate proceeding for a direction to the defendant No. 1 to deposit the arrears of rent, if any, due to them.

6. This order of the learned Single Judge was carried in appeal and the Division Bench by its order dated 14th March 2000 rejected that appeal bearing No. 1848 of 1999. The Division Bench was also not satisfied that the case for appointment of Receiver was made out. While dismissing the appeal, the Division Bench observed that though the appeal was not admitted, "the observations in the order of the learned Single Judge were of prima facie nature and intended to dispose of the motion in which the only prayer was with respect to appointment of Receiver and for an injunction against the respondent No. 1 to restrain them from creating third party rights in their own property. The Division Bench also observed that if the appellants moved for an application for attachment before judgment, the observations made in the order of the learned Single Judge or of the Division Bench will not prejudice the application.

7. Thereafter the appellants have taken out the present notice of motion wherein they prayed, as pointed out above, that the respondent No. 1 be directed to deposit the amount of Rs. 81,77,632.50 which is the amount towards arrears of rental and also a direction that per month an amount of Rs. 1,78,020/- be deposited from time to time. This motion reached before another Single Judge. The learned Single Judge took the view that the power of the court under Order 12, Rule 6 of Civil Procedure Code dealing with decree on admission could not be invoked in the present matter. The learned Judge also took the view that Section 151 of Civil Procedure Code was also not available to the appellants to invoke the inherent jurisdiction in the facts of the present case. He therefore rejected the motion. Being aggrieved by that order, this appeal has been filed.

8. Mr. Rambhadran, learned counsel appearing for the appellants, submitted that practically there is hardly any dispute with respect to the claim of the appellants on the pleadings as they stand on record. Although this is a suit of 1997, no written statement has been filed as yet. In the correspondence prior to the suit, also it is not seen that there is any dispute raised by the respondents with respect either to the ownership of the containers or with respect to the rental charges, In a situation like this, he submitted that an order of deposit of the amount, which were due on the date of the filing of the suit, was just and necessary. In his submission, the power under Section 151 of the Civil Procedure Code was wide enough and this was a fit case where the court ought to exercise. He relied upon the observations of the Apex Court in the case of Manohar Lal Chopra v. Rai Bahadur Rao, to the following effect :--

"Section 151 itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice. In the face of such a clear statement, it is not possible to hold that the provisions of the Code control the inherent power by limiting it or otherwise affecting it. The inherent power has not been conferred upon the Court; it is a power inherent in the Court by virtue of its duty to do justice between the parties before it. Further, when the Code itself recognizes the existence of the inherent power of the Court, there is no question of implying any powers, outside the limits of the Code."

He drew our attention to an unreported judgment of a Division Bench of this Court in the case of Triangle Drilling Ltd. v. Jagson International Ltd., in O. S. Appeal No. 704 of 1992, wherein the Division Bench has followed this ratio in its order dated 15th October 1992. He also pressed into service a recent judgment in the case of Uttam Singh Dugal & Co. Ltd. v. Union Bank of India, JT 2000 (9) 78, wherein the denials were evasive, the Apex Court held that the trial court was justified in construing them as admissions of liability and decreeing the regular suit for recovery of money under Order 12, Rule 6 of Civil Procedure Code.

9. Mr. Kapadia, learned counsel appearing for the respondent No. 1, on the other hand, submitted that earlier a prayer for Receiver and injunction was made and it was declined by an order passed by a Single Judge which was confirmed in appeal. Thereafter present motion was moved for deposit of the amount claimed to be the amounts due to the arrears of rental charges. In his submission, this was an abuse of the process of law. He submitted that there was a distinction between a summary suit and a regular suit under the Civil Procedure Code and the procedures which were otherwise followed in a summary suit, where there was an admission of liability, could not be followed in the other kinds of suits. He submitted that the only two avenues were available. One was an order under Order 12, Rule 6 of the Civil Procedure Code where a decree on admission could be passed where a case for the same was made out. That was certainly not the prayer in the present case. As far as deposit is concerned, he submitted that it could be resorted to only under Order 39, Rule 10 of Civil Procedure Code and that was also in the circumstances which were mentioned under Order 39, Rule 10 of Civil Procedure Code, i.e. where the suit is for money or some other thing capable of delivery and the party to the suit admits that he holds such money or other things as a trustee for other party or that it belongs or due to the other party. It is only in that situation that a deposit could be directed.

10. As far as Section 151 of the Civil Procedure Code is concerned, he relied on the observations of the Apex Court in para 18 and particularly para 19 in the case of Arjun Singh v. Mohindra Kumar, . In para 19, the Apex Court has observed that the inherent power of the Court cannot override the express provisions of the law. In other words, if there are specific provisions of the Code dealing with a particular topic and they expressly or by necessary implication exhaust the scope of the powers of the Court or jurisdiction that may be exercised in relation to a matter, the inherent power of the Court cannot be invoked in order to cut across the powers conferred by the Code.

11. We are not in a position to appreciate as to how these observations help Mr. Kapadia to advance his submissions since there is no provision prohibiting the prayer for deposit. In the present case, we are in agreement with the submission of Mr. Rambhadran that prima facie there is no clear denial of the claim of the appellants. The entire stand is an evasive one and at times in the nature of an after-thought. In the reply to the motion also, it is submitted that the relief claimed could not be granted at an interim stage meaning thereby that until the suit is heard and decided, nothing could be done. It is not possible to accept this submission of Mr. Kapadia, particularly in view of the recent changes brought about in the Civil Procedure Code so that there is an early disposal of the proceedings. In Uttam Singh's case (supra) where prima facie there was hardly any defence, the Apex Court has gone to the extent that the decree on admission could be granted in a regular suit. In the present case, the only request made by the appellants is that the arrears be deposited in the court. It may well happen that at the end of the litigation, the appellants may succeed and there would be variety of difficulties in recovering the amount. Where the position is prima facie so clear, in our view, the interest of the appellants (original plaintiffs) is required to be safeguarded. In our view, the learned Single Judge has erred in rejecting the prayer for deposit of the arrears.

12. Accordingly, we allow this appeal and set aside the order passed by the learned Single Judge and grant the motion in terms of prayer (a) only to the extent of deposit and not for the purpose of withdrawal. As far as prayer (b) is concerned, Mr. Rambhadran submits that this claim is also on the basis of the breach of contract whereas Mr. Kapadia relies upon the decision of Apex Court in Union of India v. Roman Iron Foundry on Sections 73 and 74 of the Contract Act and submits that the future monthly rentals are not presently due and the appellants will have to establish the claim by way of damages and until that is done, relief in prayer (b) cannot be granted. In our view, the submission is well taken. We have extended the principle under Order 39, Rule 10 of Civil Procedure Code with the help of Section 151 of Civil Procedure Code on the footing that the appellants have claimed the arrears of monthly rentals, that there is hardly any defence disclosed and prima facie "the money is due" to the appellants. Therefore we have directed deposit of the arrears of monthly rentals as prayed in prayer (a). As far as prayer (b) is concerned, it is not possible to extend the same proposition by invoking Section 151 of the Civil Procedure Code, since the claim is for amounts that would become due per month in future. It cannot be said to be a claim for money due and presently payable. Therefore, prayer (b) is not accepted.

13. The appellants will deposit the amount of Rs. 81,77,632.50 (rounded of to Rs. 82,00,000/-) with the Prothonotary and Senior Master within 12 weeks from today. The amount when deposited will be invested by the Prothonotary and Senior Master in a nationalised bank for a period of 37 months to begin with and the deposit to be renewed at a time by 13 months until the suit is heard and decided.

14. Authenticated copy of this order be made available to the parties.