Koran Marketing vs Shagun Mahila Audyogik Sahakari ...
2004 Latest Caselaw 1426 Bom

JUDGMENT

Dharmadhikari B.P., J.

1. In appeal against Order No. 44 of 2004 filed by the original plaintiff challenge is to the order dated 8-6-2004 passed below Ex. 6 by 4th Ad hoc Additional District Judge, Chandrapur, in Special Civil Suit No. 65 of 2004. The said application at Ex. 6 was for attachment before judgment. The same plaintiff has also filed Appeal against Order No. 45 of 2004 which is directed against the order of even date passed below Ex. 5 whereby the trial Court has rejected the prayer of plaintiff for grant of restraining order in relation to one term deposit receipt. The necessary facts in this respect can be briefly stated as under :

The Suit filed by present appellant is in relation to the amount which it has to recover from respondent No. 1. Respondent No. 1 is a Co-operative Society registered under the provisions of Maharashtra Co-operative Societies Act, 1960, and had got work of transportation/supply of food grains to various Anganwadis of respondent No. 2 Zilla Parishad which are located in Chandrapur district. The agreement in this respect is entered into between respondents No. 1 and respondent No. 2 on 27-7-2001 and thereafter respondent No. 1 has entered into an agreement with present appellant on 4-8-2001. As per said agreement the actual work of supply of transportation was to be done by the appellant. It is the case of the appellant that as respondents No. 1 did not possess necessary infrastructure and finance, it was arranged for by the appellant. He states that the amount of security deposit and bank guarantee were arranged for and paid by appellant itself. The dispute between appellant and respondent No. 1 is in relation to supply of food grains as per two orders put by the Zilla Parishad on 22-3-2003 and 26-3-2002. This supply is referred to be parties as supply in 4th term. The appellant states that he completed supplies towards 4th terms in May-June, 2002 and had submitted Bill Nos. 7 and 8 dated 30-6-2002 for Rs. 22,07,676/- to respondent No. 1. If is further stated that respondent No. 1 got payment from Zilla Parishad and after making certain deductions as per terms of agreement between parties, issued cheque No. 361633 dated 11-7-2002 for Rs. 21,61,332/ - drawn on Union Bank of India, Chandrapur Branch and it was sent to him by registered A.D. along with forwarding letter dated 24-7-2002. The said cheque was presented in Bank and returned unrealised on 2-8-2002 on the ground that defendant No. 1 has closed the account. The appellant-plaintiff states that he therefore, issued legal notice dated 12-8-2002 under Section 138 of Negotiable Instruments Act, and defendant No. 1 lodged report with police on 16-9-2002 alleging that the cheque presented by the appellant/ plaintiff was forged one. The plaintiff thereafter filed Criminal writ petition before this Court and the High Court granted liberty to prosecute the agency in the matter. The other party also filed a Criminal writ petition but all those details are not relevant for deciding the present controversy. The plaintiff, therefore, filed a Suit for recovery of Rs. 28,77,000/- with interest, expenses, notice charges etc. The plaintiff further alleged that sum of Rs. 13,75,000/- is due from Zilla Parishad to defendant No. 1 against the Suit contract and he requested defendant No. 2 to make that payment directly to him as he was legally entitled to that amount. It is the case of the plaintiff that defendant No. 2 Zilla Parishad then called the parties for hearing on 23-5-2002 and 20-6-2002 and the plaintiff as also defendant No. 1 submitted their statements to Chief Executive Officer of defendant No. 2. The plaintiff then states that it was waiting for decision of Zilla Parishad in the matter and when decision did not come for long time, on 30-1-2004 it issued statutory notice under Section 164 of Maharashtra Co-operative Societies Act, to District Deputy Registrar, Cooperative Societies, Chandrapur and Nagpur but no amounts were paid to it. It also demanded term deposit receipt furnished by it to defendant No. 1 who in turn submitted it to Zilla Parishad but defendant No. 2 Zilla Parishad did not release it. Therefore, the plaintiff-appellant claimed mandatory injunction against Zilla Parishad as the Zilla Parishad is likely to release balance amount to defendant No. 1 at any moment. According to plaintiff, if such payment is allowed to take place, it would defeat the decree to be passed in his favour and in any case it would delay the execution of decree which may be passed in his favour. He contends that to defeat the recovery. Defendant No. 1 is trying to remove said amount of Rs. 13.75 lakhs and therefore, while asking for decree for entire amount, the appellant also filed application under Order 38, Rule 5 of Civil Procedure Code, seeking attachment of amount of Rs. 13.75 lakhs mentioned above. The appellant also asked for temporary injunction restraining defendant No. 2 - Zilla Parishad from returning the term deposit receipt or its amount back to defendant No. 1.

Both these applications are opposed by respondent No. 1. The fact that respondent No. 1 got the work from Zilla Parishad or the fact of agreement between appellant and respondent No. 1 is admitted. However, it is denied that it is plaintiff who paid the amount towards earnest money or which invested its own funds for executing the said work up to 4th term. Society also admitted T.D.R. for Rs. 61,633/- but it is the contention that amount therefor was paid by it. It is denied that defendant No. 1 has not invested any money. It further denied release of any cheque dated 11-7-2002 in favour of the plaintiff. It is the contention that the appellant - plaintiff use to come to the office of Society and it was found that cheque is missing. Hence, on 7-6-2002, letter was written to the concerned Bank to close the account and it was handed over to present appellant for delivering the same to said Bank at Chandrapur. However, the appellant did not deliver it and he put in the cheque for encashment which was forged one. It further denied that any hearing was held by defendant No. 2 - Zilla. Parishad. It is Society's case that the plaintiff failed to supply the food grains as per work orders issued by the Zilla Parishad and hence on 27-7-2001, Zilla Parishad cancelled the contract. It is further the case that thereafter, i.e. on 30-8-2003, defendant No. 2 gave order of same date and thereafter an order dated 8/12-9-2003 and order dated 10-9-2003 to defendant No. 1 for supply of food grains and defendant No. 1 supplied food grains and submitted bill of Rs. 13,60,719/- Defendant No. 2 contended that there was no privity of contract between plaintiff and defendant No. 2 - Zilla Parishad and it was obligatory on Zilla Parishad to make payment to defendant No. 1 to whom it had granted. The said defendant No. 1 contended that plaintiff is not entitled for any payment.

The trial Court has considered these arguments and thereafter rejected the application under Order 38, Rule 5 (Ex. 6) on the ground that there was no privity of contract between plaintiff and defendant No. 2 Zilla Parishad, that plaintiff did not establish that he completed supplies of 4th term. It also held that agreement between plaintiff and defendant No. 1 is illegal and further that the plaintiff submitted false bills without making any supplies on 27-3-2002. The application at Ex. 5 for temporary injunction in relation to T.D.R. was also rejected on same grounds. The trial Court found that the plaintiff did not approach it immediately and there was delay and hence he was not entitled to any equitable relief.

2. Heard Shri Bhangde, Advocate for the appellant plaintiff and Shri Dharmadhikari, Advocate for respondent No. 1-original defendant No. 1.

3. As the interim order is already operating in favour of the appellant and both the Advocates state that matter was already listed for final disposal, the cases were taken up for final hearing at the admission stage and is being disposed of accordingly.

4. Rule. Rule is made returnable forthwith by consent of the parties.

5. Shri Bhangde, Advocate for the appellant has argued that the reasons given by the Court below for rejecting the applications at Exhs. 5 and 6 show total non-application of mind. He invites attention of this Court to the correspondence between parties to show that said correspondence clearly reveals that in fact it is the plaintiff who has completed the supplies of 4th term. From the dates of those letters and from communication of defendant No. 2, he points out that those supplies have not been made by defendant No. 1. He states that the Zilla Parishad is releasing the payment because it has received the food grains and respondent No. 1 (defendant No. 1) has not placed on record any material to show that it had supplied the food grains to Zilla Parishad. He, therefore, contends that the fact that the supplies are made by plaintiff is very much proved on record. He further states that as per contract, bills could not have been submitted directly by plaintiff to defendant No. 2 -Zilla Parishad and the bills were to be submitted by defendant No. 1 to Zilla Parishad. He, therefore, contends that bills dated 27-3-2002 were in fact given to defendant No. 1 by the plaintiff and the real bills for payment were to be submitted by defendant No. 1 to defendant No. 2 - Zilla Parishad. He contends that therefore, the reason given by the Court below that the plaintiff has not approached with clean hands is baseless. He further argues that the finding recorded by the trial Court that transaction dated 4-8-2001 between the present appellant and respondent No. 1 is illegal is again without any merit. He contends that the agreement between parties is accepted by respondent No. 1 and respondent No. 1 cannot avoid its obligating under the said agreement. He further contends that the said agreement is also accepted by Zilla Parishad and therefore, the reasoning assigned by the trial Court in this respect is totally incorrect. He further states that the trial Court itself has held that there is no privity of contract between plaintiff and defendant No. 2 but this aspect has been overlooked while considering the Bills dated 23-7-2003 raised by plaintiff. He further points out that the application filed by him contains specific allegations showing his entitlement to claim the reliefs as prayed for.

6. As against this, Shri Dharmadhikari, Advocate for respondent No. 1 argued that the plaintiff did not approach the Court with clean hands. He prepared and forged a cheque tried to encash it and he also did not submit to bank, the report about missing cheque book. He further states that this grievance is specifically made by defendant No. 1 in his reply dated 14-9-2002 sent to notice under Section 138 of the Negotiable Instruments Act dated 12-8-2002. He contends that there are no allegations so as to enable the trial Court to exercise its jurisdiction under Order 38, Rule 5 or Order 39, Rules 1 and 2 of Civil Procedure Code. He further states that the letter dated 10-1-2003 of Union Bank of India on which reliance has been placed by the appellants plaintiff to contend that he paid the amount of T.D.R. is totally mistaken and even otherwise that letter does not show the source of money and there is no mention about any such obligation on plaintiff in the agreement dated 4-8-2001. He further states that the correspondence on which the plaintiff has placed reliance clearly show that supplies were not made by the plaintiff. He further argues that bills showing supply as alleged by the plaintiff are forged and signatures of person who has received the food grains thereon are not clear and sufficient. He further contends that the suit itself was filed after huge delay, therefore, the trial Court was right in refusing the relief to the plaintiff. He points out that the scope of appeal against order is limited and there is no need to interfere with the impugned order in both these appeals.

7. Both the Advocates have placed reliance upon certain case laws in support of their contentions. The persual of application at Ex. 6 i.e. application under Order 38, Rules 5 and 6 for attachment before judgment and conditional attachment moved by the plaintiff reveals that after giving bills, in para 28, the appellant has stated that defendant No. 1 does not possess any immovable property and it does not have even moveable property. It is further mentioned that defendant No. 1 has no property whatsoever within jurisdiction of Chandrapur Court except the aforesaid amount of Rs. 13.75 lakhs due to it form defendant No. 2 - Zilla Parishad in relation to suit work. In para 31, it is further mentioned that defendant No. 1 has no office within the jurisdiction of trial Court and it has got no work pending anywhere within that jurisdiction. It is mentioned that defendant No. 1 has opened the temporary office in Sneh Nagar, Chandrapur, only for the purposes of suit work and after execution of suit work, the said office is not functioning. It is the allegation of plaintiff that if defendant No. 1 receives the aforesaid amount of Rs. 13.75 lakhs or any part thereof from defendant No. 2, it would take the amount beyond the reach of plaintiff only with a view to deny the decree and the amount would be taken beyond the jurisdiction of trial Court. In para 29, the plaintiff has stated that defendant No. 1 has ill intention to deprive it of this amount and dishonour of cheque is given as one example in this respect. The reply submitted by defendant No. 1 to these allegations shows that defendant No. 1 has denied these allegations, however, it is admitted that it does not possess any immovable or movable property. While replying allegations in para 30, the case of plaintiff that the amount would be taken beyond the jurisdiction of Court or beyond the reach of plaintiff has not been specifically denied. In para 37, defendant No. 1 has stated that after noticing that plaintiff is unable to supply food grains, defendant No. 1 on its own supplied the food grains from 2-6-2002 and completed the contract on its own. From the discussion which will follow little later hereafter, it would be apparent that this contention of defendant No. 1 that it has supplied the food grains is not correct.

8. Advocate Shri Bhangde has placed reliance upon the judgment in the case of Greater Cochin Development Authority v. Harrisons Malayam Ltd., reported at A.I.R. 2002 Ker, 119 to state that the allegations made by him are sufficient to invoke the provisions of Order 38, Rule 5. In the said ruling, in para 12, the learned Single Judge has observed that before issuing order of attachment, the Court has satisfy itself to the genuineness of the transaction on the basis of material which should be reflected in the order. The Kerala High Court found that in the case before it, the plaintiff has clearly averred that the defendant has no assets in Kerala State and if the amount due from garnishee are collected, the defendant, with intention to obstruct or delay execution of decree that may be passed against it, will utilise the amount for its own purposes and the petitioner will be left with no alternative to release the amount due to it and to avoid irreparable loss and injury to the plaintiff, an order of attachment should be made. He further relies upon the judgment in the case of Bommanasaree Mandir v. Manisha Sarees, reported at A.I.R. 2002 A.P. 66, for the same purposes. The Andhra Pradesh High Court found that the conduct of the parties must be taken, into consideration and if form several transactions between the parties it is revealed that it would be difficult for the plaintiff to realise the amount from the defendant, considering the object of Order 38, Rule 5 of Civil Procedure Code, the Court can call upon the defendant to give necessary safeguard by furnishing security or any other form of bank guarantee.

9. Advocate for respondent No. 1 has relied upon the judgment in the case of Murtuzakhan v. Ballarpur Indu Ltd., reported at 2002(4) Bom.C.R. (N.B.)530 : 2002(3) Mh.L.J. 399. The perusal of this judgment reveals that the application filed by the plaintiff under Order 38, Rule 5 did not mention anything which would have shown that the defendant was about to dispose of the truck i.e. the only property owned by him nor shown that the defendant was about to remove the truck from local limits of jurisdiction of Court. Thus, this ruling has no application in the facts and circumstances of the present case. In the case of Renox Commercials Ltd. v. Inventa Technologies Pvt. Ltd., reported in A.I.R, 2000 Mad. 213, the High Court has laid down seven guiding principles in the matter after considering the authorities. Those guiding principles are mentioned in para 26 and said para 26 is as under :

"Before dealing with the said question as to whether those specific allegations supported by materials are available in the present case, let us refer to the guiding principles that can be deducted from the perusal of all the authorities cited by the Counsel on either side as mentioned above. The following are the guiding principles -

(1) That an order under Order 38, Rule 5 can be issued only if circumstances exist as are stated therein to the satisfaction of the Court.

(2) That the Court would not be justified in issuing an order for attachment before judgment, or for security merely because it thinks that no harm would be done thereby or that the defendants would not be prejudiced.

(3) That the affidavit in support of the contentions of the applicant should not be vague and it must be properly verified. Where it is affirmed true to knowledge or information, it must be stated as to which portion is true to knowledge and the source of information should be disclosed and the grounds for belief should be stated.

(4) That a mere allegation that the defendant is selling off his properties is not sufficient. Particulars must be stated.

(5) An order of attachment before judgment is a drastic remedy and the power has to be exercised with utmost care and caution, as it may be likely to ruin the reputation of the party against whom the power is exercised. As the Court must act with the utmost circumspection before issuing an order of attachment, the affidavit filed by the applicant should clearly establish that the defendant, with intent to obstruct or delay the execution of the decree that may be passed against him is about to dispose of the whole or any part of his property,

(6) A mere mechanical repetition of the provisions in the Code or the language therein without any basic strata of truth underlying the allegation or vague and general allegations that the defendant is about to dispose of the property or to remove it beyond the jurisdiction of the Court, totally unsupported by particulars, would not be sufficient compliance with Order 38, Rule 5 of C.P.C.

(7) An attachment before judgment is not a process to be adopted as a matter of course. The suit is yet to be tried and the defence of the defendant is yet to be tested. At the nebulous juncture, the relief which is extraordinary could be granted only if the conditions for its grant, as per the provisions of the Code, stand satisfied. This process is never meant as a lever for the plaintiff to coerce the defendant to come to terms. Hence utmost caution and circumspection should guide the Court."

10. In the next ruling in the case of Palghar Rolling Mills Pvt. Ltd. v. Visvesvaraya I. & S. Ltd., reported at A.I.R. 1985 Kant. 282, the Karnataka High Court has held that the attachment order under Order 38, Rule 5 of C.P.C. would be void if it is made without complying with the provisions of Sub-rule (1) of Rule 5, and at facts the High Court has found that the trial Court did not bother to go through the affidavits filed by the plaintiff and did not consider the material on record. In the case of T. Srinivasan v. V. Srinivasan, reported at A.I.R. 1985 Mad, 269, the same law as laid down by the above referred Madras judgment has been quoted. In fact, this ruling is followed in A.I.R. 2000 Mad. 213 mentioned supra. In the case of Bharat Tobacco Co. v. A. Jamadar, reported at A.I.R. 1980 Guj. 202, the same law has been again quoted and it has been held that only allegations that defendant is about to dispose of Tobacco worth Rs. Three lakhs to two firms carrying on business in Tamil Nadu, does not furnish sufficient cause for exercise of power under Order 38, Rule 5 as the defendants who are trading in tobacco are bound to entire into contracts with dealers in tobacco in ordinary course of business. The learned Single Judge found that there are no allegations that the Tobacco was being sold to Tamil Nadu parties at a price far below the market price with a view to defeat the decree that may be passed in the suit against them. Again in the facts of present case, this ruling has no application.

11. With these pleadings and law, one has to ascertain whether in this case, plaintiff has proved that he has supplied the food grains to the Zilla Parishad. On 24-9-2002 the Deputy Chief Executive Officer, Zilla Parishad has written to present plaintiff and it, it is mentioned that 4th term supply orders were placed by communications dated 22-3-2002 and 26-3-2002 and at Rajura project supply was completed between 25-5-2002 to 26-5-2002 while at Chandrapur Project, it was completed between 7-5-2002 to 13-6-2002. This letter is objected to by respondent No. 1 on the ground that it is procured by respondent No. 1 by mentioning that it is written on next date in reference to the letter of plaintiff dated 23-9-2002 and hence this promptness by Zilla Parishad shows that there is collusion between parties. It is further contended that dates of supply mentioned herein are contrary to the letters earlier written by Zilla Parishad. However this argument is without any substance because the earlier correspondence in this respect starts from 6-4-2002. This letter is only in relation to supply order dated 26-3-2002 and it is mentioned that till date there is no supply. Next letter dated 21-5-2002 is in relation to supplies at Rajura and Chandrapur and in it, it is mentioned that till that date food grains are not supplied and Deputy Chief Executive Officer has given 15 days time to complete supplies and in default has threatened with penalty. The next letter is dated 13-6-2002 and in it, it is mentioned that as per letter at Sr. No. 5, if respondent No. 1 is not in a position to effect supplies, it should intimate accordingly to defendant No. 2. Zilla Parishad. Thus, this letter is on the position as obtaining on 21-5-2002. It is to be noticed that all these letters are addressed by the Zilla Parishad to respondent No. 1 because their contract is with respondent No. 1. Respondent No. 1 has not pointed out any date prior to 10-4-2002 on which it has communicated these orders to plaintiff. On 10-4-2002, respondent No. 1 has written to the plaintiff and asked him to make the supplies immediately and to submit the bills after supplies for its approval. This letter also makes reference to bill Nos. 7 and 8 dated 27-3-2002 submitted by plaintiff to said defendant for approval and it is observed that bills are submitted without supplies and are not eligible for payment. On 15-6-2002, respondent No. 1 has again written to plaintiff and therein it has mentioned that as per letter dated 13-6-2002 sent by Zilla Parishad to it, the plaintiff has not supplied food grains and therefore, in order to avoid further legal complications with Zilla Parishad they are making the supplies. It is further mentioned that the bills submitted by plaintiff earlier for these supplies automatically stand cancelled. Thus, it will be seen that this letter does not specifically say that respondent No. 1 has started making supplies. The communication dated 24-7-2002 by respondent No. 1 to plaintiff on the subject of agreement dated 4-8-2001 states that plaintiff has not supplied food grains in time and therefore, penalty proceedings are pending in Zilla Parishad. It is further mentioned that Zilla Parishad has placed orders for 5th supply on respondent No. 1 and plaintiff is not making any efforts to fulfil this 5th order. The plaintiff has been therefore, asked to show within three days why this agreement should not be cancelled and as to why it should not make alternate arrangement to execute complete order of Zilla Parishad. It is thus clear that on 24-7-2002, respondent No. 1 was asking plaintiff to complete supplies as required by 5th supply order and till that time it had not made any alternate arrangements. This clearly shows that respondent No. 1 has not made any supplies towards 4th term supply and defence on these lines as raised before the trial Court is incorrect. The perusal of order of trial Court passed below Exs. 5 and 6 reveal that the trial Court has not at all considered this correspondence and its effect on dispute before it.

12. Advocate for respondent No. 1 has made grievance that plaintiff has not approached the trial Court with clean hands. The trial Court has also observed that the plaintiff has not approached it with clean hands. The reason for this is raising of Bill Nos. 7 and 8 on 27-3-2002 by plaintiff without making any supplies. It is an admitted position that the supplies for 4th term were placed by Zilla Parishad by its order dated 22-3-2002 for Rajura and on 26-3-2002 for Chandrapur. Both these communications are addressed to respondent No. 1 and therefore, on 27-3-2002. Respondent No. 1 was either not aware of these orders as those had not reached it or in any case was aware that no supply has been made as yet. Insofar as ascertaining of any ill intention about submission of these bills on the part of plaintiff is concerned, it is important to note the agreement dated 4-8-2001. Perusal of this agreement is also important because it is the argument of respondent No. 1 that amount of T.D.R. furnished to Zilla Parishad as earnest money was paid by respondent No. 1 and not by plaintiff. Here it is also necessary to point out the letter dated 10-1-2003 written by Union Bank of India. In fact, it is a certificate which states that term deposit receipt No. 5649954 for Rs. 61,633/- was issued on 31-7-2001 drawn in favour of respondent No. 2 by Mr. Arun Shukla, who is the partner of plaintiff firm. It is the argument of respondent No. 1 that amount for this is paid by it and not by plaintiff. Therefore, perusal of said agreement dated 4-8-2001 is also necessary to resolve this controversy. The said agreement in Clause 1 itself clearly stipulates that the plaintiff has to execute the work of supply by spending its own money on behalf of respondent No. 1. By Clause No. 2 burden to deposit/pay any amount against EMD, SD, Bank Guarantee and other miscellaneous expenses including transportation, labour payment etc. has also been put up on plaintiff and it is also mentioned that the plaintiff has to provide funds to respondents No. 1 for purchase of oil and other needs/requirements in case of necessity and it is mentioned that said amount is refundable after release of payment by Zilla Parishad. Clause No. 3 further provides that plaintiff has to raise and present bills after supply of food grains with respondent No. 1 and such bill raised by plaintiff shall not be more than 95% of the payment received by respondent No. 1 from Zilla Parishad, By Clause No. 4, it is further mentioned that respondent No. 1 after receipt of payment has to pay amount against pending bills to plaintiff within 7 days by Demand Draft or cheque and said amount is also agree to be not more than 95% of the payment received from Zilla Parishad by respondent No. 1. Thus, it is clear from this agreement that respondent No. 1, who does not possess any movable or immovable property succeeded in procuring the contract from respondent No. 2 Zilla Parishad and in turn entrusted its entire execution to present plaintiff. But in the absence of privity of contract between plaintiff and respondent No. 2, plaintiff could not have presented any bill directly to Zilla Parishad, The bills dated 27-3-2002 are, therefore, not meant for use by defendant No. 2 Zilla Parishad and the bills are raised only with defendant No. 1 i.e. present respondent No. 1. The explanation given by plaintiff is that as the financial year was about to expire on 31-3-2002, it is respondent No. 1 who wanted plaintiff to submit bills cannot be lightly brushed aside at this stage and in such circumstances. In any case, it cannot be said that plaintiff has not approached the Court with clean hands on account of submissions of these bills. It also follows that the amount of T.D.R. supplied to Zilla Parishad must have been purchased by present appellant (plaintiff) and atleast prima facie he is entitled to order of protection of that amount of T.D.R. during the pendency of suit. Advocate for respondent No. 1 has placed reliance upon the judgment of this Court in the case of Abdulla Umar v. Subai Mura, reported at 1999(Supp.) Bom.C.R. (O.O.C.J.)566 : 1998(3) Mh.L.J. 91 to contend that the parties seeking such relief cannot even make attempt to mislead the Court and it has to make true, candid and full disclosure of all relevant facts. I do not find that this proposition of law is violated in the facts and circumstances of the present case.

13. Advocate for respondent No. 1 has contended that agreement dated 4-8-2001 between plaintiff and defendant No. 1 is illegal. He contends that the contract has been given by Zilla Parishad to defendant No. 1 because it is a Co-operative Society of Women. He states that because of its this nature, it has been given certain concessions and, therefore, the precedence in the matter of allotment of work. He states that if such a work or contract is indirectly given to present plaintiff it would constitute violation of concession which is given in public interest and as a matter of public policy, He contends that such a contract is void as contemplated under Section 23 of the Indian Contract Act. The trial Court has also considered this argument and has found in favour of respondent No. 1 in the impugned orders. However, Advocate for the appellant-plaintiff has relied upon the judgment in the case of Nutan Kumar v. IInd ADJ, reported at 2002 (8) S.C.C. 31 to contend that the contract is not void and until and unless statute specifically provides that contract contrary to its provisions would be void, the contract remains binding between the parties and can be enforced between parties themselves. He has relied upon para 13 of this judgment.

14. In so far as present contract is concerned, it is apparent that even respondent No. 2 Zilla Parishad has accepted that respondent No. 1 has introduced present plaintiff as sub-contractor. The perusal of letter dated 24-9-2002 written by Deputy Chief Executive Officer of Zilla Parishad to plaintiff reveals that the Zilla Parishad is aware of the fact that godown in which food grains or oil was stored belonged to one Deepak Jaiswal and not to respondent No. 1 and Deepak Jaiswal has informed Zilla Parishad that as per agreement dated 4-8-2001 between respondent No. 1 and plaintiff, the godown is with plaintiff. Knowing all this, Zilla Parishad has released payment in favour of respondent No. 1 and it appears that after cancellation of agreement, the plaintiff had requested Zilla Parishad to issue payment in the name of plaintiff but Zilla Parishad refused to do so because its contract was with respondent No. 1. It is thus clear that body which could have objected introduction of plaintiff as sub-contractor has not raised any objection in the matter. It is also clear that respondent No. 1 had no source or means to execute the work and hence it introduced plaintiff as sub-contractor and perhaps has recovered commission in the matter as is apparent from the agreement dated 4-8-2001 between parties. In such circumstances, in view of the Apex Court's ruling Nutan Kumar v. 2nd ADJ(supra) as there is no express provision in any statute declaring the agreement dated 4-8-2001 to be void, it cannot be said that the suit filed by plaintiff is not maintainable. Similarly, such a plea cannot be allowed to be raised by respondent No. 1 as it is the creation of respondent No. 1 itself and respondent No. 1 has been benefited because of this arrangement. It is also important to note that no such plead of breach of public policy or its effect has been taken before the trial Court by respondent No. 1. Thus, this argument of respondent No. 1 also fails and the reason given by Trial Court is not sufficient to deny the relief to the appellant-plaintiff.

15. Advocate for respondent No. 1 has further contended that respondent No. 1 has not given any cheque to plaintiff because cheque book was already lost and letter dated 7-6-2002 was already given to the bank about such loss. Perusal of said letter reveals that said letter is received by the bank on 12-7-2002 and it is forwarded by hand by respondent No. 1 through her representative. However, this letter nowhere mentions that any attempt was made to tender it between 7-6-2002 and 12-7-2002. It is interesting to note that the plaintiff got his cheque dated 11-7-2002 from respondent No. 1. The case of plaintiff is that cheque book was never lost and story of loss has been fabricated only with a view to avoid action for dishonour of cheque. This matter will be required to be considered after giving parties an opportunity to adduce evidence by the trial Court. The Advocate for respondent No. 1 has relied upon the judgment of the Apex Court in the case of Colgate Palmolive (India) Ltd. v. Hindustan Lever Ltd., reported at 1999(7) S.C.C. 1, for advancing the proposition that the delay in filing a suit in such matters is fatal and therefore, plaintiff is not entitled to grant of interim relief. The reliance has been placed upon paras 44 and 45 of this ruling. The said case was in relation to Trade Mark "Suraksha Chakra" and there no relief was given to applicant and other side was allowed to use said trade mark for allowing the practice to continue for long before moving M.R.T.P. Commission. The observations are made in this back ground and said observations are, therefore, not relevant in the facts and circumstances of the present case.

16. The plaintiff from para 16 of his plaint has given the details about various efforts made by him in the matter. He has mentioned that defendant No. 2 - Zilla Parishad called the parties for hearing on 23-5-2003 and thereafter on 20-6-2003 and parties were heard on 20-6-2003. He has further pointed out that thereafter on 30-1-2004 he issued mandatory suit notice as required by Section 164 of Maharashtra Co-operative Societies Act and filed the suit after expiry of said period in the month of April, 2004. The trial Court has considered this aspect in para 19 of its order passed below application at Ex. 5 while refusing temporary injunction. However, under the circumstances, it is clear that suit filed by plaintiff is not delayed and there is no reason to deny him the relief of temporary injunction or relief of attachment before judgment as claimed in applications at Exh. 5 and 6. Prima facie, it is apparent that respondent No. 1 Society is making all possible efforts to deny payment to the plaintiff to which he is legally entitled. It is also clear that respondent No. 1 is not possessing any movable and immovable property and is keen on removing the money out of territorial jurisdiction of Chandrapur Court. Discussion made earlier shows that all ingredients of Order 38, Rule 5 are satisfied by the appellant/plaintiff. Failure of trial Court to consider the material on record has resulted in perverse findings and an unsustainable order. Under the circumstances, the impugned orders passed by the 4th Ad hoc Additional District Judge, Chandrapur, below Exhs. 5 & 6 are quashed and set aside.

17. During hearing of appeal before this Court, respondent No. 1 has given offer to furnish solvent security if the amount is permitted to be withdrawn by it and suit is directed to be expedited. The Advocate for appellant - plaintiff has sought time to obtain instructions about it and on next date, after instructions, the said Advocate expressed readiness and willingness in the matter. However, on that day, the Advocate for respondent No. 1 stated that he cannot stand by the offer and he has instructions to argue the matter on merits. It is thus clear that the amount which does not belong to Zilla Parishad shall continue to lie with Zilla Parishad without earning any interest and to the prejudice to both sides. The entitlement of either of plaintiff or respondent No. 1 to this amount shall be worked out by the trial Court after full trial which may take sometime. Under the circumstances, respondent No. 2 - Zilla Parishad is directed to deposit the amount of T.D.R. i.e. Rs. 61,633/- and also the amount of Rs. 13.75 lakhs lying with it with 4th Additional District Judge, Chandrapur, within a period of four weeks from today. The 4th Additional District Judge, Chandrapur, shall then invest the said amount in any Nationalised Bank initially for a period of two years.

18. It is to be noted that the views expressed by this Court are only upon prima facie appreciation of material available on record, after hearing the contesting parties. The trial Court shall proceed to hear the suit on merits uninfluenced by any of these observations.

19. Both Appeals against order are disposed of accordingly. Rule is made absolute in above terms. There shall be no order as to costs.