PRISM CEMENTLIMITED Vs. L AND T FINANCE LTD

JUDGEMENT

(1.) THIS is plaintiff's appeal under Order 43 Rule 1 (a), CPC against the order by which the plaint has been returned to the plaintiff under Order 7 Rule 10, CPC for presentation to the proper Court.

(2.) THE plaintiff Company filed the suit on 21-8-2003 claiming various declarations and also mandatory injunction for a direction to defendant no. 3 Court Receiver of Bombay High Court to "remit the sale-proceeds to the plaintiff and/or the arbitrator appointed by the plaintiff. The plaintiff submitted an application under Order 39 Rules 1 and 2, CPC for an interim mandatory injunction to the defendant No. 3 to sell the machine and to deposit the sale-proceeds in Civil Court Deposit or with the arbitrator.

(3.) THE facts relevant for the present purpose as per plaint are that there was agreement dated 16-8-2001 between the plaintiff and defendant no. 2 Delta Construction Systems Limited, Hyderabad; under this agreement the defendant No. 2 deployed a machine known as "mega-rock breaker" in the premises of the plaintiff at Satna on 10-4-2002; the defendant No. 2 created a pledge of this machine in favour of the plaintiff; the physical possession of this machine continued with the defendant No. 2 but it was not entitled under the terms of the contract to remove the machine from the premises of the plaintiff; the defendant No. 2, however, surrendered this machine to the defendant No. 3 to defeat the rights of the plaintiff; the defendant No. 3 has taken possession of the machine in pursuance of the order dated 28-4-2003 of the Bombay High Court; there is an arbitration clause in the agreement between the plaintiff and the defendant No. 2 and the plaintiff has invoked that clause for appointment of arbitrator for settlement of dispute regarding recovery of Rs. 1,14,12,661/- as damages from the defendant No. 2; the defendant No. 1 claims that the defendant No. 2 had taken the machine on "hire purchase" and because of the default in the payments the defendant No. l approached the Bombay High Court on its original jurisdiction for appointment of Receiver by making an application under Section 9 of the Arbitration and Conciliation Act, 19%; the said Court appointed defendant No. 3 official receiver to take possession of the machine and to sell it; this order was passed with the consent of the defendant Nos. 1 and 2; the Receiver took possession of the machine on 29-5-2003; according to the plaintiff the alleged "hire purchase agreements" between the respondent Nos. 1 and 2 are in fact "contracts of sale on deferred payments" and the ownership of the machinery vested in the defendant No. 2; the plaintiff is entitled to invoke the pledge created in its favour by the respondent No. 2 and has a right to sell the machine; the plaintiff has been given the liberty by the Bombay High Court to obtain an order from a Court of competent jurisdiction to disentitle the Court Receiver from removing the said machine from the premises of the plaintiff; as the bombay High Court has already directed the Receiver to sell the machine the plaintiff and the defendant No. 1 are now in effect claiming rights over the sale-proceeds from the sale of the said machineries as to appropriate the same against their respective claims. On the basis of these averments the plaintiff in para 25 of the plaint has valued the relief of declaration at rupees one lac and the relief of injunction at Rs. 2000/ -. The plaintiff has affixed fixed Court fee of Rs. 500/- on the relief of declaration and Rs. 500/- for the relief of injunction.