Allahabad High Court
Himachal Steel Rerollers And ... vs The Union Of India (Uoi) And Ors. on 20 May, 1987
Equivalent citations: AIR1988ALL191, AIR 1988 ALLAHABAD 191, (1987) 13 ALL LR 602 (1987) ALL WC 989, (1987) ALL WC 989
JUDGMENT Mithal, J.
1. The F.A.F.O. is directed against an order passed by the 4thAdditional District Judge, Allahabad dismissing an application for issue of ad interim injunction and restraining the Railway authorities from encashing the bank guarantee furnished by the appellant in connection with a contract entered into between the parties.
2. The short questions that arise for determination, apart from other somewhat irrelevant and almost insignificant points urged are,
(i) Whether the plaintiff had made out a prima facie case for issue of temporary injunction? and, (in Whether the suit is bad for want of a notice under Section 80 of the Code of Civil Procedure?
3. The plaintiff had entered into a contract with the Railways for supply of angle iron as per specifications after re-rolling-raw material to be supplied by the Railway. There is no material disagreement about the quantity of angle iron to be supplied after re-rolling against a given quantity of raw material after accounting for agreed loss of raw material in the re-rolling process. It is undisputed that against the bank guarantee of Rs. 10,00,000/-furnished by the plaintiff, 257.770 metric tons of billets (raw material) was supplied. Against this the plaintiff supplied only 102.899 metric tons of angle iron (92.70 metric tons, according to defendants). Although the balance quantity remained lying with the plaintiff no further supply of angle iron after re-rolling was admittedly made. The entire re-rolling work was stipulated to be completed by 30-6-1982 but this was not done. According to the plaint allegation, conditions in Punjab where its plants were located were far from being normal due to after effects of 'Operation Blue Star' and this prevented the plaintiff to carry out the work undertaken by it. It is also alleged that breach was made by the defendant by failing to supply the balance quantity of raw material and to extend time for completing the contract.
4. At the very outset we may point out that the learned Counsel has strenuously tried to impress upon us that as the Court below had fixed a time limit to conclude his submissions he was handicapped in placing the entire facts. However, without entering into that controversy any further we permitted him to make his submission to his hearts content and heard him patiently until he had nothing more to say. We hope that the learned counsel now does not entertain any feeling that he had not been heard in full. We are purposely putting this fact in writing lest he may. again raise such an objection at some later stage.
5. The plaintiff did not file any documentary evidence in support of its case except for an affidavit with an annexure containing the terms subject to which plaintiffs tender had been accepted. On a consideration of the plaint allegations and what has been asserted in the affidavit, we are not at all satisfied that the plaintiff had succeeded in establishing a prima facie case. None of the three prerequisites for grant of an interim injunction has been established. It is well settled that no temporary injunction should be granted unless the plaintiff establishes a prima facie case, balance of convenience and likelihood of irreparable injury. Absence of any of these three ingredients must entail rejection of the application.
6. In the instant case, Sri Rama Nand, learned counsel for the appellants, has made a statement before us that the bank guarantee of Rs. 10,00,000/- was furnished by the plaintiff towards payment of the price of the raw material which was supplied by defendant No. 1 to the plaintiff. In para 5 of the plaint-also it is admitted that Bank Guarantee for this sum was furnished' for part of the raw material to be supplied by defendant No. 1'. Thus, on its own showing the bank guarantee had been furnished only against the supply of nearly 257.770 metric tons of billets. According to annexure to the affidavit in support of the application for temporary injunction, it had agreed to furnish bank guarantee @ Rs. 35557- per metric ton of raw material which works out to Rs. 8,03,635/-. It was also stipulated between the parties that the above rates were subject to variation as may be caused due to any refixation of price of raw material by SAIL (Steel Authority of India Ltd.). Since the plaintiff has admittedly received about 257 tons of billets and has only supplied finished goods weighing 90 to 100 tons only it was prima facie bound to pay the price of the balance quantity of billets left with it. In any event, even if the defendant is able to encash the Bank Guarantee, the plaintiff is not likely to suffer any (sic)eparable injury as it can, in all events, be compensated in terms of money.
7. Apart from this there is no balance of convenience in favour of the 'plaintiff in as much as he can be compensated in terms of money in case the plaintiff's suit ultimately succeeds. If the plaintiff suffers any damages the same are also capable of being converted in terms of money and as such no inconvenience is likely to be caused to the plaintiff.
8. Prima facie case having not been established and the plaintiff also having failed to show any irreparable loss or injury to it which cannot be suitably compensated, we find no ground to grant the injunction. The order under appeal does not suffer from any legal infirmity in this regard.
9. Coming to the other aspect of the matter, Sri Lalji Sinha, for the respondent, has pointed out that the suit itself was not maintainable as neither mandatory notice under Section 80 C.P.C. had been served on the defendants before the institution of the suit nor any leave from the court was obtained as required by Sub-clause (2) of the said Section.
10. For the appellant it is contended that the plaintiff has in fact moved an application seeking leave of the court, though admittedly much after the institution of the suit, but no orders on it had been passed by the court. It is urged that from this circumstance it must be inferred that necessary leave had been granted by the court.
11. We cannot agree to the submissions of the appellant which we consider are devoid of any merit. Giving of notice in all cases against the Government or Public Officers in respect of official acts is mandatory. However, an exception has now been made after the amendment of 1976 in the Code of Civil Procedure in those limited class of cases where urgent and immediate relief is required but in such cases also leave of the court at the time of institution of the suit is necessary and interim relief also can be granted only after hearing the counsel for the Government.
12. It will be relevant to mention here that a suit was filed on 27th February 1985 and the written statement was filed on 8th April 1985 in which a specific plea regarding want of notice under Section 80 C.P.C. and absence of leave of the Court as required by Sub-clause (2) were taken in para 25 thereof. The impugned order was passed on 15th May 1985 while the application for leave under Sub-clause (2) of Section 80 C.P.C. was moved as late as on 13th May, 1985.
13. According to the learned counsel this application may be deemed to have been allowed as the court has not passed any order thereon. This submission needs to be mentioned only to be rejected and the same is devoid of any substance.
14. Amended Section 80 now consists of two parts, Sub-clause (1) of Section 80 is imperative in nature and requires that every suit filed against the Government must be filed after serving a notice under Section 80 C.P.C. in the manner prescribed. Sub-clause (2) of Section 80 is an exception to Clause (1) and in certain limited class of cases where some urgent or immediate relief against the Government or a Public Officer is needed, the service of notice can be dispensed with by the leave of the Court. Sub-clause (2) of Section 80 is extracted below :
"A suit to obtain an urgent or immediate relief against the Government (including the Government of the State of Jammu and Kashmir) or any Public Officer in respect of any act purporting to be done by such public officer in his official capacity may be instituted, with the leave of the Court, without serving any notice as required by Sub-section (1) : but the Court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or Public Officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit:
Provided that the Court shall, if it is satisfied after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of subsection (1)."
15. A bare perusal of the above provision will go to show that even in the excepted class of cases the suit has to be filed only with the leave of the Court. Such leave must precede the institution of the suit. It is not possible to read into the language of above provision that a plaintiff can be permitted to obtain such leave even subsequent to the institution of the suit. The bar of notice under Section 80(1) can be removed only when requisite leave of the court has been obtained before or at the most while filing the plaint for institution of the suit.
16. Appellant's learned counsel submitted that the use of the word 'shall' in Sub-clause (1) and the word 'may' in Sub-clause (2) of Section 80 indicates that this leave can be obtained subsequently. We find it difficult to agree to this. A plaintiff intending to institute a suit against the Govt. has two options before him, either he may file a suit after serving two months' notice under Section 80 C.P.C. or he may file the suit without serving the notice but in that event he must satisfy the court that an urgent and immediate relief is required and also obtain previous leave of the court. (Emphasis provided.) In the event of the first course being adopted the suit can not be filed before the expiry of the two months of giving of the notice and this explains the reason for using the word 'shall' in Sub-clause (1) of Section 80 C.P.C. by the Parliament. However, in the second case he has the choice to file the suit without giving the requisite notice but only after obtaining leave of the court and it is for this purpose that the word 'may' has been used in Clause (2) of Section 80 C.P.C.
17. In the present case admittedly no notice under Section 80(1) C.P.C. had been served. Provisions of Sub-clause (2) cannot also come to plaintiffs rescue as no leave was sought either before or at the time of instituting the suit. Prima facie, therefore, the objection taken by the Union of India in this respect has force.
18. In view of the above discussion, we do not find any substance in this appeal and it is accordingly dismissed with costs.