HINDUSTAN ZINC LIMITED Vs. VIJAYSING AMARSINH LIMITED

JUDGEMENT

(1.) Having consistently failed to obtain an order of injunction against encashment of duly executed Bank Guarantee from the Court of Civil Judge, Senior Division, Jamnagar, in Special Civil Suit No. 104 of 1988, from the learned Single Judge of the High Court of Gujarat in Appeal From Order No. 186 of 1992 as back as 3rd of April, 1992 and also from the Supreme Court of India, in the petition for Special Leave to Appeal being No. 6356 of 1992 as back as 13/05/1992, the stubborn recalcitrant M/s. Vijaysinh Amarsinh and Company has by filing second suit on the same cause of action and more or less for same reliefs in the same Court (different Judge) has succeeded in getting an order of injunction against the encashment of the Bank Guarantee. The Civil Judge, Senior Division, Jamnagar (V. N. Shah) has by the impugned order dated 7/08/1992 not only rendered meaningless binding directives of the superior Courts, i.e., the High Court of Gujarat and the Supreme Court of India, but has wilfully and deliberately helped recalcitrant litigant in not obeying the orders of the Apex Court of the State and the Apex Court of the Country. It is this order of Civil Judge, Senior Division, Jamnagar, which has given rise to these two Appeals From Orders, one by Hindustan Zinc Limited, in whose favour, the Bank Guarantee was executed and another by Vijaya Bank, who was to encash the Bank Guarantee by making over payment to Hindustan Zinc Limited.

(2.) In order to appreciate questions of larger importance, which arise in Appeals From Orders, relevant facts are stated hereunder : (I) M/s. Vijaysinh Amarsinh and Company (Plaintiff contractor) entered into a contract with M/s. Hindustan Zinc Limited (Appellant in Appeal From Order who has not been impleaded as party in the suit) for construction of 'Besunda Dam' situated in Udaipur District of Rajasthan State after inviting tenders from general public. The tender of plaintiff was lowest and was accepted. (II) According to the plaintiff, the contract was in two parts and the work was to be completed in two stages. The work of the first stage was substantial while the work for the second stage was nominal for only Rs. 30 lakhs. It was his case that he completed the first stage of the contract for Hindustan Zinc Limited, but despite his readiness and willingness to do the work for the second stage, it was not given to him. There was option in Hindustan Zinc Limited to assign the work of the second stage to the contractor by 31/12/1988, but by notice dated 8/08/1988, the plaintiff contractor withdrew from the contract. (Ill) According to the plaintiff, contract of the second stage was not assigned to the plaintiff, an agreement for that part of the contract was without any consideration and, therefore, he filed the suit for declaration and for permanent injunction restraining the defendants, both Hindustan Zinc Limited and Vijaya Bank from encashing and/ or invoking the Bank Guarantee given by the bank in favour of Hindustan Zinc Limited. Along with the suit he filed an application for injunction restraining Hindustan Zinc Limited from invoking the Bank Guarantee during the pendency of the suit. (IV) In such Civil Suit being No. 104 of 1988, ex-parte ad interim injunction was granted by the trial Court, which came to be vacated as back as 12/03/1992 (after four years). (V) It was the case of Hindustan Zinc Limited that the contractor committed breach of the contract and without even completing the work of the first stage, he withdrew from the contract, so as not to permit the company to exercise the option at the second stage. It was the case of the company that the contract provided for exclusive jurisdiction of Udaipur Court in the State of Rajasthan. Still, however, the suit was filed in Jamnagar Court and even notice which was issued by the contractor on 8/08/1988 was received by the company after the contractor obtained ex-parte injunction from the Civil Court on 1 2/08/1988. Despite repeated attempts made by the company to get the said ex-parte injunction vacated, the contractor was successful in getting the hearing delayed and hence Special Civil Application No. 138 of 1992 was filed in the High Court of Gujarat and the High Court directed the Civil Judge, Senior Division, Jamnagar, to decide Exhibit 5 application within ten days from 9/01/1992. The contractor once again adopted delaying tactic by filing Review Application, being Misc. Civil Application No. 84 of 1992, which was also rejected. Direction of the High Court was not carried out and when the trial Court was proceeding to decide Exhibit 5 Application on merit, the contractor filed Civil Revision Application No. 297 of 1992 in the High Court of Gujarat to restrain the trial Court from deciding Exhibit 5 application on merit. Such Civil Revision Application was rejected on 25/02/1992 and by judgment and order dated 12/03/1992, the trial Court vacated the ex-parte injunction against the encashment of Bank Guarantee. (VI) The contractor challenged the order of Civil Judge, Senior Division, by filing Appeal From Order No. 186 of 1992, which came to be decided by C. K. Thakker, J. by reported judgment in the case of Vijaysinh Amarsinh and Co. v. Hindustan Zinc Limited, Udaipur and Am., reported in 1992 (1) GLR 639, by which the Appeal From Order was dismissed and the order of the trial Court vacating the injunction was confirmed. (VII) The contractor thereupon requested the Court to extend ad interim injunction which was extended upto 27/04/1992, to enable the contractor to prefer appeal before the Supreme Court. On further request for extension, ad interim relief was extended upto 30/04/1992 without interest and upto 15/05/1992 on the condition that after 30/04/1992, the contractor would be liable to pay 18 per cent interest on the outstanding amount. (VIII) The contractor then approached the Supreme Court by petition for Special Leave to Appeal, being No. 6356 of 1992, which came to be dismissed on 13/05/1992. The contractor thereupon filed a fresh Special Civil Suit No. 95 of 1992, in the same Court of Civil Judge, Senior Division, Jamnagar, as by that time the Civil Judge, who passed the earlier order was transferred and in this suit, the contractor deliberately did not implead Hindustan Zinc Limited as party. He applied for ex-parte ad interim injunction, which was granted by new Judge on 20/05/1992 and by the impugned order dated 7/08/1992, the learned trial Judge confirmed the ad interim order and it is this order, which is under challenge before this Court. (IX) Hindustan Zinc Limited came to know about such order and it applied for Leave to Appeal before this Court and K. G. Shah, J. granted Civil Application 25/02/1993. The Civil Application for condonation of delay was granted by this Court on 31/03/1993 and thereafter the Appeal From Order was admitted and was fixed for final hearing on 12/04/1993 and was finally heard.

(3.) In the aforesaid fact situation, this Court is called upon to decide the question as to whether the second suit for the same relief was maintainable and as to whether the trial Court was justified in granting interim injunction on the same cause of action between the same parties when such injunction was vacated by its predecessor-in-office, by High Court of Gujarat in Appeal From Order and by the Supreme Court of India in Special Leave Petition. This Court is also required to decide as to what extent the contractor should be found guilty of abuse of the process of the Court by committing Contempt of Court by resorting to abuse of the process of the Court. This Court shall have also to incidentally decide the question of the propriety on the part of Civil Judge, Senior Division, Jamnagar (V. N. Shah) in passing the order of injunction despite full knowledge of the fact that on the very facts between the same parties, his predecessor-inoffice has vacated the injunction and such order is confirmed by the High Court and by the Supreme Court.