VINODRAI MONJI POPAT Vs. SAMANKUMAR PRAVINBHAI PANDYA

JUDGEMENT

(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 sec. 13 of the Commercial Court Act, is directed against the order dtd. 1/2/2022 passed below Exh.44 to the extent of not ordering surety of Bank Guarantee or Fixed Deposit or solvent surety/ solvency certificate and order dtd. 14/2/2022 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 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 5/10/2021, 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.32,00,000.00. 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 dtd. 22/11/2021. Thereafter, the plaintiff moved an application at Exh.44 seeking interim injunction under Order 39 Rule 4 and sec. 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 dtd. 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 12/1/2022, defendant nos.2 and 3 have preferred an application under Sec. 12 of the Contempt of Courts Act and prayed to initiate contempt proceeding against the plaintiff for non-compliance of the order dtd. 29/11/2021. Thereafter, on 17/1/2021, appellant 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 22/1/2022, the plaintiff has also filed affidavit stating total value of pharmacy store as per inventory stating closing stock.