Bombay High Court

M/S Sunflag Iron And Steel Company ... vs Gurudatta Enterprises Through ... on 14 December, 2016

Bench: Prasanna B. Varale

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THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.

WRIT PETITION NO. 4258 OF 2015

M/s. Sunflag Iron & Steel Company Limited
Through its Authorized Signatory

having its registered office at 33,
Mount Road, Sadar, Nagpur- 440001. ... Petitioner

VERSUS

Gurudatta Enterprises
Through its Proprietor
Mr. Tapankumar S/o Pramodnath Ojha,
Resident of Near Sunflag School,

Bhandara Road, Bhandara. ... Respondent
-------------------------------------------------------------------------------------------------
Shri A. C. Dharmadhikari, Advocate for the petitioner
Shri N. N. Thengre, Advocate for the respondent

------------------------------------------------------------------------------------------------------------------------

CORAM : PRASANNA B. VARALE, J.

JUDGMENT RESERVED ON : 7-3-2016

JUDGMENT PRONOUNCED ON : 14-12-2016

JUDGMENT

Rule. Rule made returnable forthwith.

2. The petitioner challenges the order passed by the learned

Civil Judge Senior Division, Bhandara dated 6-7-2015 in Regular

Darkhast No. 39/2004.

3. Brief facts giving rise to the present petition can be

summarized as follow.

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The petitioner - company engaged the respondent as work

contractor. Initially, the respondent - company was operating in the

name of Dharini Electricals. Subsequently, the respondent - company is

operating with the name of Gurudatta Enterprises. From year 1991 to

2004, the respondent - company was engaged by the petitioner as job

work contractor. The last contracts between the petitioner and

respondent was executed for the period from 1-7-2002 to 31-3-2003 and

from 1-3-2003 till 31-3-2004. The work contract rescinded with efflux

of time is the case of the petitioner - company. The respondent

instituted two suits against the petitioner-company, namely, Special

Civil Suit No. 112/2004 (old number) (new number 22/2009) for

permanent injunction and return of materials as per Schedule 'A' and 'B'

and another suit bearing no. 24/2009 for recovery of money. Special

Civil Suit No. 112/2004 was decreed partially and an order was passed

on an application thereby permitting the respondent-company to take

back the possession of the articles in Schedule 'A' and 'B'. The

respondent filed hakrasi form, Exhibit No. 1. The said proceeding was

registered as Regular Darkhast No. 39/2004. On an application seeking

review filed by the petitioner, the order below Exhibit 5 thereby

permitting the respondent to take possession of the articles in Schedule

A and B subject to production of list of articles by the respondent and

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verification by Security Department of the petitioner-company was

passed. As there was some dispute in respect of the material specified in

Schedule A and B, in view of an objection raised by the petitioner and in

view of an application submitted by the respondent, the order came to

be passed for appointment of the Commissioner. Learned trial Court

appointed Advocate Shri Raut as Commissioner and the Commissioner

was directed to trace the account of the petitioner-company from 1991

to 2004. On an application for amendment submitted by the petitioner,

order came to be passed dated 3-12-2005 thereby directing the

Commissioner to verify the accounts and records for 10 years i.e. from

1994 to 2004. Special Civil Suit No. 22/2009 (old number 112/2004)

was decided by the judgment and decree and thereby the petitioner-

company was directed to return the tools, articles and machinery 1 to 30

and A, B and C described in Commissioner's Report, Exhibit 179. The

respondent filed First Appeal No. 284/2014 in challenge to the

judgment and decree passed in Special Civil Suit No. 22/2009 and the

same is admitted by order dated 29-4-2015. The respondent filed an

application for attachment warrant in Regular Darkhast No. 39/2004.

The same was replied by the petitioner-company. On 1-7-2014, the

learned Executing Court allowed the application and directed only to

attach those articles which are specified in the judgment and decree

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dated 4-5-2013. Learned Executing Court gave directions in the said

order to refer the Commissioner's report. The respondent moved two

applications in Regular Darkhast No. 39/2004, one for grant of bailiff

and another for police protection. The petitioner contested the

applications by submitting that the respondent falsely made claim for

possession of heavy machinery which was neither part of judgment and

decree dated 4-5-2013 nor part of the report of the Commissioner. By

order dated 6-7-2015, learned Executing Court allowed the respondent

to take over possession of machine which belongs to the petitioner-

company is the submission of the petitioner.

4. Shri Dharmadhikari, learned counsel for the petitioner

referred to the various documents placed on record, namely, the

judgment and decree passed by the Court below, the report of the

Commissioner submitted to the Court, the darkhast application filed by

the respondent-company, certain interim orders passed by the lower

Court during the pendency of the suit and the final judgment and decree

passed in Special Civil Suit No. 22/2009. It was vehemently

submitted by the learned counsel Shri Dharmadhikari that the

documents, namely, the judgment and decree and the Commissioner's

report only referred to Schedule A and B and the articles under caption

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C and in these documents, there is nowhere mention of the machinery

claimed and sought to be recovered from the petitioner-company.

Shri Dharmadhikari, learned counsel then submitted that even though

the suit filed by the respondent is decided by judgment and decree i.e. in

favour of the respondent-company, the respondent had filed first appeal

challenging the said judgment and decree. It was the further submission

of Shri Dharmadhikari, learned counsel that the respondent-company

wanted to place reliance before the Court below on certain interim

orders to substantiate his claim. Shri Dharmadhikari, learned counsel

submitted that as the suit filed by the respondent was decided by

judgment and decree, the interim orders are merged in final order and

no reliance could have been placed on interim orders to support the

claim. Shri Dharmadhikari, learned counsel by inviting my attention to

the orders passed by the learned lower Court and placed on record

submitted that the learned trial Court observed in the order that all

articles referred to in Schedule A and B in the plaint filed by the

respondent were not found on the spot. Shri Dharmadhikari, learned

counsel then submitted that the respondent for the first time made

submissions in respect of the machinery when the applications were

moved by him in regular darkhast for grant of bailiff and police

protection. It was submitted by Shri Dharmadhikari, learned counsel

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that from the institution of suits i.e. from year 2004 till the decision of

the suit i.e. judgment and decree dated 4-5-2013, the respondent never

raised the claim in respect of the said machinery. It was the submission

of Shri Dharmadhikari, learned counsel that the learned Executing Court

while allowing the applications filed by the respondent exceeded its

jurisdiction. It was the submission of Shri Dharmadhikari, learned

counsel that it is the settled position of law that the Executing Court

possessed of only limited power i.e. the execution of the judgment and

decree and the Executing Court cannot travel beyond this power and

grant some relief to the decree holder which is not the part of the

judgment and decree. Shri Dharmadhikari, learned counsel placed

reliance on the judgment of the Apex Court in the case of Kanwar

Singh Saini Vs. High Court of Delhi reported in (2012) 4 SCC 307.

5. Per contra, Shri Thengre, learned counsel for the

respondent supported the order impugned in the petition. It was the

attempt of learned counsel Shri Thengre to submit before this Court that

the complete and necessary material is not placed before this Court by

the petitioner. It was the attempt of learned counsel Shri Thengre to

submit before this Court that as the lower Court passed an order in

respect of delivery of the articles and reference was made to the

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Commissioner's report and as the machinery claimed by the respondent

was purchased by the respondent and was kept in the premises, the

respondent was entitled to get back the said machinery. Shri Thengre,

learned counsel then submitted that as the lower Court being a fact

finding Court passed the order in favour of the respondent thereby

directing the petitioner to handover the machinery to the respondent

and this Court cannot substitute its opinion for fact finding. Thus, it was

the submission of Shri Thengre, learned counsel for the respondent that

the petition is unsustainable and untenable, as such, same be dismissed.

Shri Thengre, learned counsel also placed reliance on certain judgments.

6. Heard the learned counsel appearing for the parties at

length. I have also gone through the material placed on record. Perusal

of the copy of plaint in Civil Suit No. 112/2004 instituted by the

respondent which is the subject matter shows that the respondent -

plaintiff filed suit for permanent/mandatory injunction. The prayer in

the plaint reads thus :

(i) Grant permanent injunction restraining the defendant its agent or any person acting on behalf of the defendant company from engaging other contractor for contracting work of defendant till 31-12-2004 and till satisfing the outstanding dues of Plaintiff and till returning the machinery and appliances and records (fully described in Schedule A & B) to the Plaintiff. (emphasis supplied)

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(ii) ....

(iii) ....

(iv) ....

The copy of the Schedule A and B reads thus :

SCHEDULE A

__________________________________________________________

1. Standing Machine, 20mm to 75 mm capacity.

2. Wedling Transforma Machine, make I.O.L. capacity 2 Face, Oil Cool

3. Pulling & lefting Machine make Tfqr.

4. Chain block 5 ton capacity 2 Nos.

5. Cotugan Tourch 3 meter length 4 Nos.

6. Cotugan Tourch 18" length 4 Nos.

7. Reguletor 16 Nos.

8. Miscellaneous tools, tackles, safety appliances etc. as per register _______________________________________________________________

SCHEDULE B __________________________________________________________

1. Measurement Books.

2. Machinery Register.

3. Contract File.

4. Wages Register.

5. P.P.F. Register.

6. Account Register.

7. Bill & Voucher File.

8. All other records relating the contract work.

9. All the abovesaid property fully described in Schedule A & B are within possession and custody of defendant till today. _______________________________________________________________

Perusal of the material placed on record further shows that an

application was filed at the instance of the respondent sometime in the

month of May, 2004 for temporary injunction. The prayers in the said

application reads thus :

(i) Grant Temporary injunction restraining the Non- applicant its agent or any person acting on behalf of the Non-

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applicant company from engaging other contractor for contracting work of Non-applicant till 31-12-2004 and till satisfing the outstanding dues of Applicant and till returning

the machinery and appliances and records (fully described in Schedule A & B) to the Applicant.

(ii) Direct the Non-applicant to allow Plaintiff to work till

31-12-2004 as per renewal of licence in favour premises and take custody of all records and machinery full described in Schedule A & B.

(iii) Cost of the suit be awarded against the Non-applicant

and

(iv) any other relief as this Hon'ble Court may deem fit under

the facts and circumstances of the case be awarded against Non-applicant.

Perusal of the material shows that the petitioner had filed written

statement denying all the contentions raised by the respondent - plaintiff

including the details of Schedule A and B. Perusal of the order dated

2-7-2004 passed on the application for temporary injunction shows that

the application was partly allowed. It would be useful to refer to the

relevant observation of the learned lower Court.

10. The applicant is not made out strong prima facie case for grant of interim relief relates to execute job work contract with non-applicant company and restrained the non-applicant

from engaging other contractor ; but entitled to possession of the machinery, appliances, tools, tackles and registers from the custody of the non-applicant. For the reasons discussed above and my findings to point no. 1 to 3 I proceed to pass the following order.

ORDER

1. Application at Exh-5 is hereby partly allowed.

2. The defendant/non-applicant shall deliver the

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possession of the articles in Schedule 'A' and 'B' of the Plaint to the applicant.

3. The applicant shall pay the court fees as per rules for the possession of movable property described in schedule 'A' of the plaint.

4. Parties to bear their own costs.

As there were certain observations of the learned Joint Civil Judge

Junior Division, Bhandara in paragraph no. 9 of the order in respect of

production of list of articles by the applicant and verification by Security

Department of the petitioner-company and as same was not reflected in

the order dated 2-7-2004, the petitioner-defendant filed an application

seeking review. By order dated 17-3-2005, the application was allowed.

The clause (2) of the operative order dated 2-7-2004 was amended by

adding the words "subject to the production of the list of articles by the

applicant and verification by security department of the non-applicant

company".

7. Perusal of the material further shows that an application

was filed at the instance of the respondent-plaintiff for appointment of

the Commissioner. Learned lower Court i.e. Joint Civil Judge Junior

Division, Bhandara by observing that there is a grave dispute between

the plaintiff and defendant regarding the articles in schedule 'A' and 'B'

of the plaint and its verification by the Security Department passed the

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order thereby appointing Advocate Shri R. Y. Raut as Commissioner.

The Commissioner was directed to report as to what extent the plaintiff

is entitled for the delivery and possession of articles in schedule 'A' and

'B' of the plaint after due verification of the Security Department of the

non-applicant/Company. Then further order was passed on an

application seeking verification of the record thereby permitting the

Commissioner to verify ledger maintained by the security department of

the defendant company (petitioner herein) from year 1994 to 2004 and

to verify the relevant record of audit/account section from 1994 to 2004

regarding deduction of cost of machinery in installment from the year

1994 to 2004 as alleged by the plaintiff. (emphasis supplied) This

order passed by the Court below clearly shows that the Court has not

expressed any opinion in respect of the machinery being owned by the

respondent-company but the Court only refers that the machinery as

alleged by the plaintiff. Perusal of the Court Commissioner's report

placed on record at Annexure-P-13 shows that the Commissioner

referred to various vouchers. It may not be necessary to refer to all

these vouchers. It would be useful for our purposes to refer to the list of

articles. List of articles referred to certain articles. The Commissioner

further found that there were some articles which were referred to in

the receipts of articles submitted by the plaintiff. The Commissioner

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then in clear words states that those articles were not entered in the

security company register also. These articles are :

                                   Hose pipe            30 met.

             c) 28.12.02           Cutting torch        4 Nos.

The Commissioner then further states that property mentioned in

Schedule A and B not found there in standing machine hall there is

straightening machine its manufacturing year 32 y model-SM.65,

Capacity 25 met. Then the Commissioner states in the report that he

directed the defendant to produce articles mentioned in Schedule B i.e.

measurement book, machinery register, contract file, bill and voucher

file and record relating to contract work of plaintiff. The document is

placed on record at Annexure-P-14 i.e. the copy of invoice referring to

straightening machine delivered to the petitioner from one Bhambra

Engineering Works, Calcutta and receipt is also placed on record. It

shows that an amount of Rs. 8,92,495/- was paid by the petitioner-

company towards the said machine. Perusal of the copy of the judgment

and decree passed by learned Civil Judge Senior Division, Bhandara in

Special Civil Suit No. 22/2009 i.e. Old R.C.S. No. 112/2004 shows that

the suit is partly decreed and the Court further directed to return the

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tools, articles and machinery 1 to 30 and A, B and C which is fully

described in Commissioner Report Ex-179 within three months from the

date of order and the plaintiff shall take their custody within three

months failing which the defendant's company will not responsible for

loss or damage, if any, tools or machinery or articles.

8. Further perusal of the material shows that the respondent

himself had filed first appeal before this Court bearing Stamp No.

13193/2013 challenging the judgment and decree passed by learned

lower Court in Special Civil Suit No. 22/2009. Perusal further shows

that the applications were filed by the respondent for a special bailiff

and police protection. Perusal of the application for execution of the

decree dated 4-5-2013 through special bailiff shows that it is submitted

that there is a heavy machinery which is the part of decree and it would

require at least 4 days and 15 skilled labourers to remove the

machinery, as such, special bailiff be provided for 4 days for execution of

the decree. In the application seeking police protection, it is reiterated

that the machinery is heavy and the judgment debtor may cause

obstruction for removal of the machinery, as such, the police protection

be provided. By filing reply, the application is strongly opposed. It is

stated in the reply that the judgment debtor had not objected or

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obstructed to take back the articles as per the Commissioner's report but

the decree holder is asking for a specific machine without there being

any such reference of the said machine either in the decree or any

material to show that said machine belongs to the decree holder. The

order passed by the learned Civil Judge Senior Division, Bhandara dated

6-7-2015 impugned in the present petition shows that the learned Civil

Judge Senior Division refers to the objection raised by the petitioner,

namely, the decree holder is insisting upon custody of machine which is

not mentioned either in his plaint-schedule or in Commissioner's report,

therefore, there is resistance from judgment debtor company. Learned

Civil Judge Senior Division by observing that if one reads

Commissioner's report, Exhibit 179 which is part and parcel of decree, it

clearly states that the articles and machine belonging to decree holder

was not found in place where it was supposed to be and same were

found on some other place within the premises of judgment debtor

company. Learned Court below arises at a conclusion that the decree

holder was entitled for delivery of the said machine and allowed the

applications. In my opinion, observations of the learned Civil Judge

Senior Division, Bhandara in order dated 6-7-2015 are clearly erroneous

and contrary to the record. As stated above, the copy of schedule A and

B placed on record nowhere refers to the straightening machine. It

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would be necessary to state at the costs of repetition that the perusal of

the Commissioner's report clearly shows that the Commissioner referred

to certain vouchers and articles. The articles referred to by the

Commissioner under caption (a), (b) and (c) are two regulators, one

hose and the cutting torch. The Commissioner referred to straightening

machine but the straightening machine is neither part of articles referred

to in the list of articles by the Commissioner nor the articles captioned

under (a), (b) and (c). It would be also useful to refer to the statement

in the Commissioner's report which reads that I have visited the Bright

Bar section, Billet yard section, straightening machine section and

verified the property described in Scheduled A. It further makes clear

that the Commissioner is referred to various machinery in reference

specifically about the verification of the property described in

Schedule A. The Commissioner did not state that the straightening

machine is the part of the property described in Schedule A. The

material placed on record further shows that the respondent-defendant

nowhere gave any particulars of the said machine i.e. straightening

machine, such as, any receipt of purchase etc. On the contrary, the

documents placed on record shows that the machine was delivered to

the petitioner company from one Bhambra Engineering Works, Calcutta.

The invoice is placed on record i.e. the receipt of amount paid by the

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petitioner to the tune of Rs. 8,92,495/- is placed on record. It further

reveals that the judgment and decree dated 4-5-2013 refers to articles

and machinery 1 to 30 and A, B and C described in Commissioner's

report Exhibit 179. Further material placed on record along with the

submissions and pursis filed by the respondent shows that articles 1 to

30 are delivered to the respondent. The copy of superatnama is also

placed on record and it states that 32 articles having valued at

Rs. 4,460/- are handed over to the respondent-decree holder under a

superatnama. Learned counsel Shri Dharmadhikari placed reliance on

the judgment of Apex Court in the case of Kanwar Singh Saini Vs. High

Court of Delhi (cited supra) in support of his submission that the

interim order merges in final order. It would be useful to refer to the

following observations of the Apex Court in the said judgment.

17. Application under Order 39 Rule 2-A CPC lies only where disobedience/breach of an injunction granted or order complained of was one that is granted by the court under Order 39 Rules 1 & 2 CPC, which is naturally to enure during the pendency of the suit. However, once a

suit is decreed, the interim order, if any, merges into the final order. No litigant can derive any benefit from mere pendency of case in a court of law, as the interim order always merges in the final order to be passed in the case and if the case is ultimately dismissed, the interim order stands nullified automatically. (Vide: A.R. Sircar v. State of U.P]; Shiv Shanker v. UPSRTC, Arya Nagar Inter College v. Sree Kumar Tiwary, GTC Industries Ltd. v. Union of India and Jaipur Municipal Corpn. v. C.L. Mishra).

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I find considerable merit in the submissions of Shri Dharmadhikari,

learned counsel for the petitioner.

9. In view of the above referred detailed facts, I am unable to

accept the submissions of Shri Thengre, learned counsel for the

respondent. Shri Thengre, learned counsel though placed reliance on

judgments to submit that as in the impugned order, the lower Court had

undertaken the exercise of fact finding and this Court may not entertain

the petition as the fact finding of the lower Court attains finality.

Though there cannot be dispute on the proposition of law reflected in

the judgments relied on by Shri Thengre, learned counsel for the

respondent, I am of the opinion that in view of peculiar facts of the