CENTRAL BANK OF INDIA Vs. USHA ALUMINIUM INDUSTRIES

JUDGEMENT

(1.) The present appeal is directed against an order dated 27th September, 1994, passed by Sri P. C. Barman, learned Assistant District Judge, Raiganj, Uttar Dinajpur, in O.C. suit No. 8 of 1994, whereby an application for mandatory injunction filed by the plaintiff was allowed on terms. The defendant Bank is the appellant before this Court.

(2.) Facts of the case, relevant for disposal of the present appeal may be summarised as follows :

(3.) We have heard the appeal and before us a number of contentions had been raised, including the propriety of the order of mandatory injunction and the maintainability of the second suit by the plaintiff/respondent to this appeal. Decisions had also been cited in support of the contention that a relief by way of mandatory injunction ought not to be granted ordinarily and particularly when it results in granting the entire relief in the suit. On behalf of the appellant it was emphasised that by permitting the respondent to take delivery of 1 metric tonne per day, the learned Judge exceeded his jurisdiction inasmuch as no such prayer even had been made on behalf of the plaintiff/applicant, who is respondent before us. To counter the last submission, as noted above, on behalf of the respondent, reference was made to the terms of the revocable revolving letter of credit issued by the Bank to the supplier of said ingots and further that factually the business of the plaintiff/respondent had almost been lying closed for dearth or non-availability of raw-materials in the form of such ingots and if the supply of ingots could be obtained then through production of finished goods, it could be possible for the respondent/plaintiff to generate funds for liquidation of the legitimate dues of the appellant/defendant Bank. On behalf of the plaintiff/respondent it was further emphasised that since the Bank wanted to sell out the ingots through public auction, there could be no prejudice caused to the Bank by the impugned direction of releasing the said ingots upon payment at higher rates by the plaintiff/respondent.