MOHAMED HUSSAIN SULAIMAN OF GREAT EASTERN ENGINEERING COMPANY Vs. STATE BANK OF INDIA OVERSEAS BRANCH MADRAS

JUDGEMENT

(1.) MISHRA, J. The instant appeal is yet another in the series of cases in this Court, at the instance of the creditors in particular, in which before any adjudication of the money claim in the suit and accordingly, any decree, defendant' 's properties are sold through the intervention of the court, the sale proceeds are allowed to be appropriated by the plaintiff and as we shall presently see in the instant suit, the third party-purchasers are neither delivered any property, nor are they given the refund of the money so realised from them as the consideration of the auction purchase. The plaintiff/lst respondent has filed the suit, C. S. No. 351 of 1987 for recovery of Rs. 16,82,882. 60 from respondents 2 to 4 and in default of payment for sale of B Schedule property in the plaint for realisation of the suit claim. Pending suit, however, the plaintiff/ 1st respondent filed application No. 2084 of 1987 for appointment of an Advocate as Commissioner to take inventory of the stocks and other goods in Schedule B property mentioned in the plaint and take possession and another Application No. 2083 of 1987 for interim injunction restraining the defendants from disposing or otherwise alienating the goods available in the premises of the 1st defendant, i. e. , to say, the 2nd respondent herein. On 13. 7. 1989, the court passed an order directing the plaintiff/lst respondent to nominate one of its officers to take inventory of the stocks in the property described in B Schedule to the plaint and it was understood that the plaintiff and defendants would come out with the offers or purchaser if any so that the said stock might be sold to the highest offerer. On 25. 8. 1989, the plaintiff brought in 4 sealed covers containing offers for different amounts, which included the offer of the appellant herein, le. , to say, Great Eastern Engineering Company, Madras . The appellant' 's offer was the highest'yet, it seems, the court permitted the bid once again and finally, it seems, it was settled in favour of M/ s. Raman & Co. , The said Raman & co. , however, did not come forward and it seems, backed out. It fell this time upon the appellant to pay Rs. 7,90,000 for B Schedule properties by depositing rs. 50,000 immediately in court and the balance of Rs. 7,40,000 in instalments on various dates by getting extension of time from court for payment of the amount. After completing, however, of the payment of Rs. 7,90,000 the appellant herein demanded delivery of the goods. On 3. 10. 1989, one of the Officers of the plaintiff described as plaintiffs officer-in-charge (rehabilitation) issued a letter to the appellant permitting to take delivery of the goods availableatno. 71,perianna Maistry Street, Peria-met, Madras-3. The said officer also sent a copy of that letter, it is said, to the 1st defendant/2nd respondent asking him to release stocks detailed in that letter to the appellant or its authorised representative/nominee as the appellant had paid the entire sum of Rs. 7,90,000 as per the order of the court. According to the appellant, however, when it reached the destination as directed by the said officer of the plaintiff, it was denied any delivery of the goods. It returned, thus, with an application in court alleging that the plaintiff and the defendants had abused the process of law, which amounted to contempt and committed various criminal offences. The appellant issued a lawyer' 's notice to defendants 1 to 3 (respondents 2 to 4) with a copy to the plaintiff/lst respondent alleging that the goods were not delivered to it as per the letter of the plaintiff,but, that notice was returned unserved, as the premises of the defendants 1 and 2 (respondents 3 and 4) was found locked. The appellant filed in the said suit Application No. 5398 of 1990 seeking a direction to the plaintiff to deliver the auction materials together with Rs. l lac as damages or alternatively to refund the sum of Rs. 7,90,000 received from it with interest from 3. 10. 1989 and Rs. l lac as damages. By another Application no. 5399 of 1990, the appellant also sought punishment to respondents 2 to 4 for contempt of Court in respect of the goods sold, but not delivered to it. The appellant made yet another Application No. 5400 of 1990 seeking a direction for the prosecution of defendants 1 to 3, Le. , to say, respondents 2 to 4 for having committed criminal offence for wrongfully selling away the goods to third parties and converting the proceeds against themselves.

(2.) THE plaintiff as well as defendants opposed the abovesaid applications. THE plaintiff/lst respondent, however, came forward with a case in its counter that on 3. 10. 1989, it addressed a letter to the defendants/ respondents asking them to deliver the leather stocks to the appellant as per the order of the court and that it was under the impression that the goods were taken delivery by the appellant accordingly, but that it was only on 18. 4. 1990, when the plaintiff/lst respondent received a notice from the counsel of the appellant that it came to know that the appellant had not taken deliver of the goods from the defendants. It maintained in its counter that it was not responsible for the nondelivery of the leather stocks by defendants 2 to 4 to the appellant, as it had duly acted as per the direction of the court.

(3.) WE have dilated in some detail to the first respondent of the plaintiff/ respondent to the case of the appellant as well as the first response of the defendants to the case of the appellant that as directed by the court it deposited the purchase money in instalments with the plaintiff/ respondent. The plaintiff/respondent acknowledged such deposits and accordingly accepted that right of property in the goods stood transferred to the appellant and accordingly the appellant was entitled to take possession of the stocks sold to it. The plaintiff/ respondents' ' response was, well what if you have paid the price, if goods have not been delivered defendants alone are answerable. The defendants, on the other hand, have a strange case of a sort of a contract under which the defendants made available to the appellant money from time to time which money alone the appellant deposited towards the auction price of Rs. 7,90,000 which money amounting to Rs. 4,00,000 the appellant deposited towards the price of the stocks sold under the court' 's order and added that the appellant had delivered the original letter of the plaintiff/respondent to the defendants and taken delivery of the goods.