Vinodrai Monji Popat Karta Of Huf ... vs Samankumar Pravinbhai Pandya
2022 Latest Caselaw 4849 Guj

    C/AO/57/2022                              CAV JUDGMENT DATED: 06/05/2022



      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/APPEAL FROM ORDER NO. 57 of 2022
                             With
            CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
                               In
               R/APPEAL FROM ORDER NO. 57 of 2022

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE N.V.ANJARIA                                  Sd/-

and
HONOURABLE MR. JUSTICE SAMIR J. DAVE       Sd/-
================================================

1 Whether Reporters of Local Papers may be NO allowed to see the judgment ?

2    To be referred to the Reporter or not ?                           NO

3    Whether their Lordships wish to see the fair copy                 NO
     of the judgment ?

4    Whether this case involves a substantial question                 NO

of law as to the interpretation of the Constitution of India or any order made thereunder ?

================================================ VINODRAI MONJI POPAT KARTA OF HUF VINODRAI MONJI POPAT Versus SAMANKUMAR PRAVINBHAI PANDYA ================================================ Appearance:

MR TUSHAR L SHETH(3920) for the Appellant(s) No. 1,2,3 MR SP MAJMUDAR(3456) for the Respondent(s) No. 1 ================================================

CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA and HONOURABLE MR. JUSTICE SAMIR J. DAVE

C/AO/57/2022 CAV JUDGMENT DATED: 06/05/2022

Date : 06/05/2022 CAV JUDGMENT (PER : HONOURABLE MR. JUSTICE SAMIR J. DAVE)

ADMIT.

1. With the consent of learned advocates for the respective parties, present Appeal from Order is finally heard.

2. The present Appeal from Order under Order 43 Rule 1 of the Civil Procedure Code, 1908 and under section 13 of the Commercial Court Act, is directed against the order dated 01.02.2022 passed below Exh.44 to the extent of not ordering surety of Bank Guarantee or Fixed Deposit or solvent surety/ solvency certificate and order dated 14.02.2022 passed below Exh.69 by the learned Principal Senior Civil Judge, Commercial Court, Vadodara in Commercial Civil Suit No.87 of 2021.

3. The brief facts of the case are that the original plaintiff has filed Commercial Civil Suit No.87 of 2021 against the defendants for recovery of an amount of Rs.63,94,059.13/- and also prayed for disclosing of proper accounts and prayed for recovery of amount coming to his share and also prayed for permanent injunction. The plaintiff has also filed an application for interim injunction at Exh.5 praying direction to the defendants restraining them from selling the goods of the plaintiff from the medical store. Against which, defendant no.1 has filed written statement at Exh.21 as also defendant

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nos.2 and 3 have also filed their common written statement at Exh.26 to the injunction application and suit filed by the plaintiff. On 05.10.2021, defendant no.1 also preferred an application at Exh.28 for appointment of Court Receiver by appointing Chartered Accountant. Defendant no.1 has also filed counter claim at Exh.29 prayed to direct the plaintiff to pay an amount of Rs.32,00,000/-. The plaintiff has filed counter affidavits at Exh.31 and 32 to the written statement filed by the defendant no.1, and defendant nos.2 to 3. Thereafter, plaintiff has filed reply at Exh.36 on 27.10.2021 to the application to the interim injunction and appointment of Court Receiver at Exh.28 and 30. Both these applications have been dismissed vide common order dated 22.11.2021. Thereafter, the plaintiff moved an application at Exh.44 seeking interim injunction under Order 39 Rule 4 and section 151 of the Code of Civil Procedure restraining the defendants from taking out the stock from medical store viz. 'OM Pharmacy' till the panchnama is carried out. Thereafter, the Commercial Court vide order dated 29.11.2021 directed the defendants to prepare inventory of the medicines and also to file affidavit to that effect and the plaintiff was also directed to file an affidavit with regard to value of the stock of the inventory. Thereafter, on 12.01.2022, defendant nos.2 and 3 have preferred an application under Section 12 of the Contempt of Courts Act and prayed to initiate contempt proceeding against the plaintiff for non-compliance of the order dated 29.11.2021. Thereafter, on 17.01.2021, appellant

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no.2 filed his affidavit stating that defendants have no objection if the plaintiff tenders Fixed Deposit or Bank Guarantee before the Court against the total amount of goods and in that case, the defendants have no objection in handing over the goods to the plaintiff. Thereafter, on 22.01.2022, the plaintiff has also filed affidavit stating total value of pharmacy store as per inventory stating closing stock.

4. Thereafter, on 01.02.2022, the Commercial Court has appointed three advocates as Court Commissioners and ordered to handover the item as per the inventory to the plaintiff and the Court has further directed the plaintiff to submit surety and personal bond of inventory of the goods of Rs.23,73,732.75/-. After submission of this surety and personal bond of like amount, the Commissioners were directed to handover the possession of the inventory items to the plaintiff. In compliance of the order passed below Exh.44 dated 01.02.2022, the plaintiff submitted surety and personal bond with the Tax receipt of gram panchayat. On 08.02.2022, defendant no.1 preferred an application under section 151 of the Civil Procedure Code seeking direction to the effect that the plaintiff be directed to file complete schedule of the property alongwith ownership documents of the said property and to file affidavit in respect of the said property. The said application was dismissed by the Commercial Court vide order dated 14.02.2022. Thereafter, defendant No.1 and defendant nos.2 and 3 have preferred two separate applications for suspension of order dated 14.02.2022 for for a

C/AO/57/2022 CAV JUDGMENT DATED: 06/05/2022

period of 30 days, however, the said application came to be dismissed vide order passed below Exh.71 dated 14.02.2022. Hence, the appellants herein- original defendants preferred present Appeal from Order.

5. Heard learned Advocate Mr. Tushar Sheth for the appellants and learned advocate Mr. S. P. Majmudar for the Respondent.

6. Learned Advocate Mr.Tushar Sheth for the appellants-

original defendants submitted that the Commercial Court committed error while appreciating the fact that defendant no.1 has filed counter claim at Exh.29 for Rs.32,00,000/-, whereas the learned Judge has committed the error in passing the impugned order handing over the goods of Rs.23,73,732.75/- as per the inventory and by submitting of the surety and personal bond of the like amount, however, the learned Court has completely ignored the affidavit filed by the appellant no.2 to the effect that the goods can be handed over only on the condition to submit fixed deposit or bank guarantee. Mr. Sheth further submitted that learned Judge failed to appreciate that there is no more schedule of property mentioned neither the ownership of documents of the property was submitted nor there is any statement of affidavit that whether the said property carries any lien in the said surety. He further submitted that the Commercial Court ought to have appreciated that the appellants will not be able to recover the amount if the counter claim is decreed in favour of the plaintiff. He therefore, submitted that the respondent

C/AO/57/2022 CAV JUDGMENT DATED: 06/05/2022

herein shall produce fixed deposit or bank guarantee for the good of Rs.23,73,732.75/- as per the inventory. He therefore submitted that the decisions of the Commercial Court are illegal, arbitrary and hence, the same may be quashed and set aside.

7. As against that, learned Advocate Mr. S. P. Majmudar for the respondent submitted that the respondent has complied with the order dated 01.02.2022 passed by the Commercial Court and submitted a surety of Rs.23,73,732.75/- before the Commercial Court as well as personal bond of the like amount and he has also tendered an affidavit to the said effect. He further submitted that defendant no.1 has preferred an application before the Court below to issue direction to the plaintiff to file complete schedule of property alongwith the ownership documents of the said property if free from any lien/ charge/ encumbrance and also to file affidavit in this regard, which was rightly rejected by the Commercial Court vide order dated 14.02.2022 passed below Exh.69 as the Court below has observed that the objections to the surety and its acceptance is not tenable. Mr. Majmudar while drawing the attention of the Court to the affidavit filed by respondent has submitted that pending the Commercial Civil Suit, the respondent shall submit a copy of sale deed of the immovable property having valuation of more than Rs.23 lacs before the Commercial Court and shall not transfer the said property till the disposal of the Commercial Civil Suit No.87 of 2021. He also submitted that the said property is free from any

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encumbrances and there is no lien, charge or mortgage of any bank or society over the said property. He therefore submitted that the present Appeal from Order being devoid of merits may be dismissed.

8. It appears from the record that the respondent plaintiff had filed the suit in question against appellants- original defendants for recovery of amount of Rs.63,94,059.13/- alongwith other ancillary reliefs. Alongwith the suit, the respondent- plaintiff had filed Exh.5 application seeking interim injunction to the effect that the appellants- original defendants be restrained from selling, transferring and/or assigning medicines, furniture etc. lying in the medical store named 'Om Store' and had further prayed to restrain the appellants from entering into any agreements in respect of goods lying in the said store. The defendants resisted the interim application by filing his written statement vide Exh.21. The defendants had also filed another application vide Exh.28 seeking appointment of the Court Receiver for seizing and taking over the custody of certain documents descriptions of which were mention in the said application. The defendants had also filed counter claim vide Exh.29 with a prayer to direct the respondent- plaintiff to pay an amount of Rs.32,00,000/- to the defendant no.1. In the said application filed by the appellants- original defendants had also filed his reply. It appears that the Court below dismissed both the applications Exh.5 for interim injunction filed by the respondent- plaintiff as also an application at Exh.28 filed by

C/AO/57/2022 CAV JUDGMENT DATED: 06/05/2022

the appellants-original defendants seeking appointment of Court Receiver by way of common order dated 22.11.2021. Pursuant to the dismissal of the above two applications, the respondent- plaintiff moved an application at Exh.44 under Order 39 Rule 4 of Civil Procedure Code seeking direction against the appellants- in the form of restraining them from selling, transferring or assigning the medicine and furniture etc., lying in the medical store in question. The appellants- original defendants had also prayed to restrain the plaintiff from removing stock from the medical store and to restrain the respondent- plaintiff form entering into medical store until the panchnama was drawn. In the said application below Exh.44, initially the Court below passed an order on 29.11.2021, whereby the appellants- original defendants were directed to prepare inventory of the medicines kept into store in the presence of the respective advocates and thereafter, to file an affidavit to the effect as to whether they were desirous to retain the goods of medicine with them or to hand it over to the respondent- plaintiff.

9. It appears that the aforesaid order was passed considering the fact that the stock in question were of medicine, which are perishable items and have definite shelf life. Further more in the suit, the plaintiff had also claimed the amount of medicine, which were lying in the medical store. However, it appears that subsequently, the respondent- plaintiff filed another application seeking review of the earlier order dated 29.11.2021 passed below Exh.44 as the direction issued in the

C/AO/57/2022 CAV JUDGMENT DATED: 06/05/2022

said order could not be executed, primarily for the reason that in the suit filed by the respondent-plaintiff the amount claimed by the respondent-plaintiff from the defendants towards medicine was of Rs.25,00,000/-, as against which the defendants had filed counter claim of Rs.32,00,000/-. Therefore, the appellants had prayed for the stock of medicine may be released in favour of the respondent- plaintiff on certain suitable conditions. Accordingly, the Court below passed the further order dated 01.02.2022 below Exh.44, which reads thus:

".... Before issuing the Commission Patra to hand over the items, plaintiff to deposit Rs.3000/- towards Commission Fees to be paid to the Commissioners and to submit surety and personal bond of the inventory of the goods amount of Rs.23,73,732.75/- on the stamp paper of Rs.100/- each before this Court and after submission of this surety and personal bond of the like amount Commissioners are already directed to hand over the possession of the inventory items to the plaintiff. Plaintiff to comply payment of fees and submitting surety and personal bond within seven days of this order i.e. upto 07.02.2022. If the plaintiff does not want to submit surety, it may deposit the same amount before this Court, which shall be made Fixed Deposit by this Court."

10. In view of the facts and circumstances of the case and since

the main suit is pending adjudication, We are of the opinion that the apprehension put forth by the appellants- original defendants would be taken care of by directing the respondent- plaintiff to furnish solvent surety as against simple surety of the amount of inventory of goods as directed

C/AO/57/2022 CAV JUDGMENT DATED: 06/05/2022

by the Court below while confirming the remaining direction issued in the said order.

11. In the result, the Appeal from Order is partly allowed. The

impugned order dated 01.02.2022 passed below Exh.44 in Commercial Civil Suit No.87 of 2021 is modified to the extent that as against direction issued by the Court below to furnish simple surety of the inventory of the goods to the tune of Rs.23,00,000/-, the respondent- plaintiff is directed to furnish solvent surety of the said amount. It is made clear that only the direction qua simple surety has been modified and rest of the directions issued in the impugned order dated 01.02.2022 passed below Exh.44 are not disturbed. It goes without saying that earlier order dated 29.11.2021 passed below Exh.44 in Commercial Civil Suit No.87 of 2021 is merged with the subsequent order dated 01.02.2022 and which has been further modified by way of this order. Hence, both the orders stand modified in the above terms.

12. The Appeal from Order stands disposed of accordingly.

13. In view of the order passed in Appeal from Order No.57 of

2022, present Civil Application does not survive and accordingly stands disposed of.

Sd/-

(N.V.ANJARIA, J)

Sd/-

(SAMIR J. DAVE,J) MEHUL B. TUVAR