Rajasthan High Court - Jaipur
M/S Yogesh Chaudhary vs State Of Raj And Others on 13 December, 2016
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B.CIVIL MISCELLANEOUS APPEAL NO. 5183 / 2016
M/S YOGESH CHAUDHARY, A CLASS CONTRACTOR & GENERAL
SUPPLIERS, REGISTERED PARTNERSHIP FIRM, HAVING ITS
REGISTERED OFFICE AT- 451, KRISHNA NAGAR, BHARATPUR;
THROUGH ITS PARTNER YOGESH CHAUDHARY S/O SHRI KEHRI
SINGH, AGED ABOUT- 42 YEARS, BY CASTE- JAT, R/O 451,
KRISHNA NAGAR, BHARATPUR.
----APPELLANT-PLAINTIFF
VERSUS
1. STATE OF RAJASTHAN THROUGH SECRETARY, AGRICULTURE
DEPARTMENT, SECRETARIAT, JAIPUR.
2. ADMINISTRATOR, RAJASTHAN STATE AGRICULTURAL
MARKETING BOARD, JAIPUR.
3. ADDITIONAL CHIEF ENGINEER, ZONE-1, RAJASTHAN STATE
AGRICULTURAL MARKETING BOARD, JAIPUR.
4. SUPERINTENDING ENGINEER, RAJASTHAN STATE
AGRICULTURAL MARKETING BOARD, TERMINAL MARKET
SECTION, LAL KOTHI, JAIPUR.
5. EXECUTING ENGINEER, RAJASTHAN STATE AGRICULTURAL
MARKETING BOARD, TERMINAL MARKET SECTION, LAL KOTHI,
JAIPUR.
----RESPONDENT/DEFENDANT
__________________________________________ For Appellant : Mr. Rahul Kamwar with Mr. Abhisar Bhanu For Respondents : Mr. Sudeep Mathur on behalf of Mr. I.J. Singh, AAG, for respondent No.1. Mr. R.A. Katta, for respondent No.2 to 5. __________________________________________ HON'BLE MR. JUSTICE VEERENDR SINGH SIRADHANA Judgment / Order 13/12/2016 By order dated 7th September, 2016, the trial Court declined the application of the plaintiff-appellant under Order 39 Rule 1 and 2 read with Section 151 CPC; of which the plaintiff-appellant is (2 of 13 ) [CMA-15/2006] aggrieved of.
2. Briefly, the essential skeletal material facts are that the plaintiff/appellant, in response to a tender notice issued by the defendant-non-appellants, submitted his bid for construction of the wall along with check-post at Terminal Market, Muhana, Jaipur. It is pleaded case of the plaintiff-appellant that despite an agreement executed between the parties on 28th April, 2004; the work order was issued to the appellant-firm only on 24 th August, 2004. The appellant was required to complete the nd construction in an area of 3400 mtrs. by 2 January, 2005. The lay-out plan for construction work was to be provided within ten days, as contemplated in the order/communication th dated 24 August, 2004, but the lay-out plan was provided only for 500 mtrs., and thus, the defendant-non-appellants infringed the condition No.2 of the agreement. The plaintiff-
th appellant-firm, vide communication dated 4 December, 2004, informed the non-appellants of the infringement and failure to provide lay-out plan within the agreed time period. Though, the th non-appellants undertook to furnish the lay-out plan by 11 December, 2004; however, the appellant-firm, vide th communication dated 12 January, 2005, declined to proceed further on account of expiry of the term of contract and for not providing the lay-out plan.
3. Learned counsel for the plaintiff-appellant, reiterating the (3 of 13 ) [CMA-15/2006] pleaded facts and grounds of the memo of appeal, asserted that th non-appellant No.4, while addressing a communication dated 20 January, 2005, to non-appellant No.5; admitted the fact that the lay- out plan was not provided to the plaintiff-appellant, within the stipulated time as per agreement.
4. According to the learned counsel for the appellant, proceedings th initiated under Clause 2 of the agreement, vide notice dated 25 February, 2005, were made subject matter of challenge in SBCWP No.2238/2004, instituted before this Court. The writ application was disposed off, requiring the plaintiff-appellant to approach the respondents through a representation. A detailed representation was th addressed on 8 April, 2005, but the non-appellants turned a deaf ear and instead of deciding its representation, issued an order for the recovery of Rs.3,71,846/-, which was made subject matter of challenge in SBCWP No.3487/2006. An interim stay order was st granted on 1 May, 2006 in the writ proceedings, which continued th till 11 September, 2014, for the plaintiff-appellant was directed to approach the Standing Committee in view of contemplation under Clause 23 of the agreement and the writ petition was disposed off th accordingly vide order dated 11 September, 2014.
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5. It is further asserted that order dated 11 September, 2014, was assailed before the Division Bench in an intra-court appeal, th which was disposed off on 6 January, 2016, observing that Clause 23 read with Clause 51 of the agreement could not be construed to (4 of 13 ) [CMA-15/2006] be an arbitration clause or an arbitration agreement as contemplated under Section 7 of the Arbitration and Conciliation Act, 1996 (for short, 'the Act of 1996').
6. The appeal was dismissed as withdrawn with liberty reserved to the plaintiff-appellant to avail remedy available to him in accordance with law. As regards limitation, the Division Bench observed that the appellant would be at liberty to invoke Section 14 of the Limitation Act, 1963, and in case, an application was so instituted, the competent authority was expected to consider the same sympathetically.
7. Learned counsel further urged that the trial Court, while declining the application of the plaintiff-appellant, has not recorded any finding as to first principle i.e. existence of a prima facie case as has been held by the Apex Court of the land in catena of judgments.
8. It is further emphasized that maintainability of the suit proceedings in the face of text of Section 80 of CPC and Section 31 of the Rajasthan Agricultural Produce Markets Act, 1961, (for short, 'the Act of 1961') so also in the backdrop of the contemplation under Section 69 of the Indian Partnership Act, 1932; is yet to be examined by the trial Court. An application instituted for condonation of delay invoking Section 14 of the Limitation Act, 1963, has also not been adjudicated upon. All that the trial Court has observed is to the effect that the applications pending would be rendered infructuous and for the present the trial Court was required to adjudicate upon application as to grant Temporary Injunction that has been declined for the pending applications. In order to substantiate his contentions, learned counsel has relied upon the opinion of the Supreme Court in the case of M. Gurudas and Ors. Vs. Rasaranjan and Ors.:
(5 of 13 ) [CMA-15/2006] (2006)8 SCC 367, Peer Gulam Naseer versus Peer Gulam Jelanee: 1988 (2) RLW 262, Hemraj Vs. Executive Officer Nagar Palika Indragarh: 1999 WLC (Raj.) UC 319, District Club Bundi & Others Vs. Madhukar Gupta: RLW 1997(3) Raj. 1825, Tayabbhai M. Bagasarwalla and another vs. Hind Rubber Industries Pvt. Ltd. Etc: (1997) 3 SCC 443, Kanraj Khatri Vs. Nathuram Jain: AIR 1997 MP 92, The State of Assam and Anr.
Vs. Shri B.D. Patowari: (1985)1 GLR 66, Thimappa Basappa Doddayankannavar (deceased) by L.Rs. Vs. Krishnappa Gangadharappa Naikar: AIR 2001Kant 57.
9. Learned counsel would further submit that the object underlying mandate of Section 80 of CPC, has been absolutely lost sight of by the trial Court while declining the application for grant of Temporary Injunction. Reliance is placed on the opinion in the case of Raghunath Ds Vs. Union of India (UOI) and Anr.:AIR 1969 SC 674, Amar Nath Dogra Vs. Union of India (UOI): AIR 1963 SC 424, DCM Limited Vs. DDA: MANU/DE/0728/2009.
10. Referring to the text of Section 14 of the Limitation Act, 1963, th and liberty reserved by the Division Bench vide order dated 6 January, 2016, learned counsel has relied upon the opinion of the Supreme Court in the case of Ramesh B. Desai and Ors. Vs. Bipin Vadilal Mehta and Ors.:(2006) 5 SCC 638.
11. It is further asserted that Section 69 of the Indian Partnership Act, 1932, cannot be construed to prevent the mandated procedure of trial of all issues together and non trial of issues of facts as a preliminary issue can be given a go bye. Reliance has been placed on the opinion of High Court of Delhi in the case of Jagdamba Industries Vs. Sh. Krishan Pratap: (2011) ILR 2 Delhi 115.
(6 of 13 ) [CMA-15/2006]
12. Per contra; Mr. R.A. Katta, learned counsel appearing for non- appellant-defendants No.2 to 5, while supporting the impugned order, vehemently argued that the trial Court taking into consideration the factual matrix, has rightly declined the application.
13. Learned counsel would further contend that bar of suit in absence of notice as applicable under Section 80 CPC as well as under Section 31 of the Act of 1961, applies to the proceedings before the 'Board' in the face of text of Section 22-M of the Act of 1961, which contemplates that provisions of Act and Rules applicable to a 'market committee' shall mutatis mutandis be applicable to the 'Board'. Reference has also been made to the case of G.M.Haryana Roadways Vs. Jai Bhgwan & Anr.: 2008 (2) CCC 762 (S.C.), to assert that a litigant is not entitled to any relief in the case of suppression of material facts. For the plaintiff-appellant deliberately and intentionally suppressed the pending proceedings under the Rajasthan Public Demands Recovery Act, 1952, and therefore, the application for grant of Temporary Injunction has been rightly declined.
14. It is further asserted that the suit proceedings were instituted after a long delay and the plaintiff-appellant approached for obtaining discretionary relief after a long time. Thus, having regard to the conduct of the plaintiff-appellant, discretionary relief has been rightly declined. Reliance is also placed on the opinion of the Supreme Court in the case of Manjunath Anandappa urf Shivappa Hanasi Vs. Tammanasa and Ors.: (2003) 10 SCC 390.
15. I have heard the learned counsel for the parties and with their assistance perused the materials available on record as well as gave my thoughtful consideration to the rival submissions at Bar so also (7 of 13 ) [CMA-15/2006] th carefully scanned the impugned order dated 7 September, 2016.
16. Indisputably, the plaintiff-appellant did institute writ application st before this Court wherein an interim order was made on 1 May, 2006, staying the recovery that was sought to be effected in view of th the order dated 16 March, 2005. It is also not in dispute that the th interim order continued till 11 September, 2014, while the writ application was disposed off with liberty to the appellant to approach the respondents to agitate the matter before the Standing Committee in view of the contemplation under Clause 23 of the th agreement. Order dated 11 September, 2014, reads thus:
"It is submitted that Clause 23 of the agreement provides for adjudication of the dispute between the parties by the Standing Committee but it is subject to deposition of 2% of the claim amount. The petitioner did not invoke jurisdiction of the Standing Committee. It is submitted by the respondents that if petitioner approaches the Standing Committee after deposition of 2% of amount, his case would be considered.
In view of facts given above, this writ petition is disposed of with liberty to the petitioner to approach the respondents for sending the case to the Standing Committee after deposition of 2% of the claim amount. The matter would then be considered by the Standing Committee. The case is quite old thus Standing Committee would be expected to decide the same at the earliest."
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17. An intra-court appeal instituted against the order dated 11 September, 2014, was withdrawn with liberty to avail of the remedy by way of a civil suit for a Coordinate Bench of this Court in the case of M/s Mohammad Arif Contractor V. State of Rajasthan:
2015(4) WLC (Raj.) 32, held that clause 23 read with Clause 51 of the agreement could not be construed to be an arbitration clause or (8 of 13 ) [CMA-15/2006] an arbitration agreement as contemplated under Section 7 of the Act of 1996.
18. In the backdrop of the submissions, the Division Bench dismissed the intra-court appeal as withdrawn with liberty reserved to the appellant to avail of remedy in accordance with law. The th operative portion of the order made by the Division Bench on 6 January, 2016, reads thus:
"Taking note of the submissions made and the judgment reported in 2015 (4) WLC (Raj.) 32, of which we have made a reference consider it appropriate to grant liberty to the appellant to avail remedy available to him what law permits, and as regards limitation is concerned, the appellant is always at liberty to invoke sec. 14 of the Limitation Act, and if such an application is filed, it is always expected from the competent authority to consider the same sympathetically.
The special appeal is accordingly dismissed as withdrawn with liberty prayed for."
19. From the factual matrix and materials on record, as recorded by the trial Court and the conclusions arrived at as to determination on the prima facie case' it is evident that the trial Court declined the prayer recording a negative finding as to the prima facie case in the face of legal objections pleaded on behalf of the non-appellants and pending applications which would be rendered infructuous.
20. In the case of M. Gurudas and Ors. (Supra), reiterating the settled legal position, the Supreme Court, in no uncertain terms held that a finding on prima face case would be a finding of fact. It will be relevant to consider the text of para No.14 and 15, which reads thus:
14. While considering an application for injunction, it is well-settled, the courts would pass an order thereupon having regard to:
i) Prima facie
ii) Balance of convenience (9 of 13 ) [CMA-15/2006]
(iii) Irreparable injury.
15. A finding on 'prima facie case' would be a finding of fact. However, while arriving at such finding of fact, the court not only must arrive at a conclusion that a case for trial has been made out but also other factors requisite for grant of injunction exist. There may be a debate as has been sought to be raised by Dr. Rajeev Dhawan that the decision of House of Lords in American Cyanamid v. Ethicon Ltd. [1975] 1 All ER 504would have no application in a case of this nature as was opined by this Court in Colgate Palmolive (India) Ltd. v. Hindustan Lever Ltd. MANU/SC/0494/1999:
AIR1999SC3105 and S.M. Dyechem Ltd.v.Cadbury (India) Ltd.MANU/SC/0407/2000: 2000ECR1(SC) , but we are not persuaded to delve thereinto."
21. The trial Court having noticed the factual matrix and the rival contentions of the parties to the suit proceedings while adjudicating upon the application for grant of Temporary Injunction, has not applied its mind to the question whether a prima facie case did exist in favour of the plaintiff-appellant or not.
22. From the conclusions arrived at, it is clearly reflected that while adjudicating upon the application for grant of Temporary Injunction and declining it, foremost consideration has not been, the legal objections and pending applications, which would be rendered infructuous, in case the application was to be adjudicated upon in accordance with law. It is also not in dispute that applications as to grant of permission under Section 80(2) of CPC so also condonation of delay, in institution of the suit proceedings invoking Section 14 of the Limitation Act of 1963, are still pending.
23. In the case of Manjunath Anandappa urf Sivappa Hanasi (Supra), the factual matrix that was appreciated by the Supreme st Court was in the singular facts wherein on or about 1 October, 1978, in an agreement for sale that was entered into by defendant-
appellant therein of the suit property for a consideration of (10 of 13 ) [CMA-15/2006] Rs.30,000/-, out of which a sum of Rs.20,000/- was allegedly paid as advance. The plaintiff was put in possession of the suit property. The deed of sale in terms of the agreement was to be executed within 3 years from the date thereof on payment of the balance sum of Rs.10,000/-. The defendant No.3-the appellant therein, purchased th the suit property by reason of a registered sale deed dated 15 May, 1984, for consideration of Rs.50,000/-. The plaintiff on or about th 15 May, 1984, made an enquiry about the suit property and learnt that the defendant already executed a registered sale deed in respect of the suit property in favour of the appellant therein, and th therefore, served a notice dated 8 August, 1984, demanding st specific performance of the agreement of sale deed dated 1 October, 1978.
24. In the instant case at hand with regard to the dispute as to the infringement of the terms and conditions of the agreement was raised before this Court and the same was pending until disposal of the writ application, and thereafter, in the intra-court appeal decided th on 6 January, 2016. Hence, the factual matrix of the case at hand, is entirely different and distinguishable.
25. The issue as to the maintainability of the suit proceedings in the face of Section 69 of the Indian Partnership Act, 1932, ifso facto would not determine the issue of prima facie case in the attendant factual matrix of the case at hand, which ought to have been gone into by the trial Court.
26. In the case of Ramrameshwari Devi and Others Vs. (11 of 13 ) [CMA-15/2006] Nirmala Devi and Others: 2011(8) SCC 249, taking note of the prevailing delay in civil litigation; the Supreme Court suggested steps to be taken by the trial Court while dealing with the civil trials including the aspect of tendency of introducing false pleadings and forged and fabricated documents by litigants so also the application for grant of Temporary Injunction which are required to be decided on merits avoiding undue adjournments. It will be relevant to consider the text of para No. 52 to 54, which reads thus:
52. The main question which arises for our consideration is whether the prevailing delay in civil litigation can be curbed? In our considered opinion the existing system can be drastically changed or improved if the following steps are taken by the trial courts while dealing with the civil trials.
A. Pleadings are foundation of the claims of parties. Civil litigation is largely based on documents. It is the bounden duty and obligation of the trial judge to carefully scrutinize, check and verify the pleadings and the documents filed by the parties. This must be done immediately after civil suits are filed. B. The Court should resort to discovery and production of documents and interrogatories at the earliest according to the object of the Act. If this exercise is carefully carried out, it would focus the controversies involved in the case and help the court in arriving at truth of the matter and doing substantial justice.
C. Imposition of actual, realistic or proper costs and or ordering prosecution would go a long way in controlling the tendency of introducing false pleadings and forged and fabricated documents by the litigants. Imposition of heavy costs would also control unnecessary adjournments by the parties. In appropriate cases the courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings. D. The Court must adopt realistic and pragmatic approach in granting mesne profits. The Court must carefully keep in view the ground realities while granting mesne profits.
E. The courts should be extremely careful and cautious in granting ex-parte ad interim injunctions or stay orders. Ordinarily short notice should be issued to the Defendants or Respondents and only (12 of 13 ) [CMA-15/2006] after hearing concerned parties appropriate orders should be passed.
F. Litigants who obtained ex-parte ad interim injunction on the strength of false pleadings and forged documents should be adequately punished. No one should be allowed to abuse the process of the court.
G. The principle of restitution be fully applied in a pragmatic manner in order to do real and substantial justice.
H. Every case emanates from a human or a commercial problem and the Court must make serious endeavour to resolve the problem within the framework of law and in accordance with the well settled principles of law and justice.
I. If in a given case, ex parte injunction is granted, then the said application for grant of injunction should be disposed of on merits, after hearing both sides as expeditiously as may be possible on a priority basis and undue adjournments should be avoided.
J. At the time of filing of the plaint, the trial court should prepare complete schedule and fix dates for all the stages of the suit, right from filing of the written statement till pronouncement of judgment and the courts should strictly adhere to the said dates and the said time table as far as possible. If any interlocutory application is filed then the same be disposed of in between the said dates of hearings fixed in the said suit itself so that the date fixed for the main suit may not be disturbed.
53. According to us, these aforementioned steps may help the courts to drastically improve the existing system of administration of civil litigation in our Courts. No doubt, it would take some time for the courts, litigants and the advocates to follow the aforesaid steps, but once it is observed across the country, then prevailing system of adjudication of civil courts is bound to improve.
54. While imposing costs we have to take into consideration pragmatic realities and be realistic what the Defendants or the Respondents had to actually incur in contesting the litigation before different courts. We have to also broadly take into consideration the prevalent fee structure of the lawyers and other miscellaneous expenses which have to be incurred towards drafting and filing of the (13 of 13 ) [CMA-15/2006] counter affidavit, miscellaneous charges towards typing, photocopying, court fee etc.
27. Having considered the factual matrix and the materials available on record as well as the fact that the trial Court has declined the application without going into the merits of the case on the settled principles while dealing with such applications as to prima face case, balance of convenience and irreparable loss, the application has been declined in view of the pending legal objections and various applications which would be rendered infructuous.
28. For the reasons and discussions aforesaid, the impugned order th dated 7 September, 2016, cannot be sustained and is hereby quashed and set aside.
29. The application under Order 39 Rule 1 and 2 read with Section 151 CPC, is hereby restored. The trial Court is directed to reconsider the matter and pass an order addressing on the settled principles while considering the application for grant of Temporary Injunction under Order 39 Rule 1 and 2 CPC.
30. Both the parties are directed to appear before the trial Court st on 21 December, 2016.
31. Accordingly, the misc. appeal as well as the stay application stand disposed off.
(VEERENDR SINGH SIRADHANA)J. Pcg/95