J&K INDUSTRIES LTD Vs. MOHD AMIN

JUDGEMENT

(1.) THIS revision petition is directed against the order dated: 14 -07 -1999 passed by the learned IV Addl. District Judge, Srinagar in appeal No: 57/98 filed therein by the petitioners against the order dated: 05 -10 -1998 and order dated: 21 -12 -1998. Both these orders were passed by the learned City Munsiff. Srinagar. In the order dated: 05 -10 -1998 direction was given to the petitioners herein to implement the court order dated: 07 -03 -1998 and supply initially 200 Kgs of raffle yarn for which respondent had already deposited the price. The supply was to be made within a period of ten days from the receipt of the order. Further direction was given that when this supply of 200 Kgs of raffle yarn was received, respondent had to deposit the price of the remaining quantity of the raffle yarn within seven days. In terms of the order dated: 21 -12 -1998, the initial accounts of the petitioner herein maintained in the Jammu Kashmir Bank Ltd. Amirakadal and residency road, Srinagar were attached. Both the above stated orders were challenged in appeal before the learned IV Addl. District Judge. Srinagar vide order dated: 14 -07 -1999. The appeal was dismissed with a further observation that even if the petitioners do not produce the raffle yarn it is their obligation to procure the same form open market and ensure the compliance of the court order.

(2.) THE factual matrix of the case lies in a narrow compass. Respondent herein filed suit for mandatory injunction against petitioners praying for the relief that they must be directed to supply 2845 Kgs of raffle yarn of the quantity of 1.42 and 2.42 at the rate of Rs.111/ - per Kg. The claim put up in the plaint was that respondent herein vide order No. MD/SIS/SM -9/79 -80 dated; 25 -10 -1986 had been allotted 5100 Kgs of Raffle Yarn of the above stated quality on the terms of conditions contained in the said allotment order. As a consequence of the allotment, respondent on 03 -11 -1986 deposited Rs.20,000/ - as security vide receipt No. 2186 dated: 03 -11 -1986. Respondent lifted 2255 Kgs of said yarn against price but the remaining quantity was not supplied. The case of the respondent is that there was a subsisting contract between the parties and petitioners were under obligation to make available the balance quantity of raffle yarn in the quantity of 2845 Kgs at the agreed price. It was also pleaded that respondent approached the petitioners many a times personally as well as through written communication to make good the deficit supply but all efforts ended in vain. Hence the suit was filed.

(3.) THE suit was accompanied by an application made by the respondent under Order 39 Rule 1 CPC wherein prayer was made for the grant of interim relief that petitioners may be directed to supply the remaining quantity of raffle yarn. On 07 -03 -1988, the trial court passed the order holding that respondent had a prima facie case and directed the petitioners herein to supply the balance of raffle yarn at the stipulated rate of Rs.111/ - per Kg during the pendency of the suit. Condition was imposed that respondent shall furnish undertaking to the effect that in the event of failing in the suit he would return the balance of yarn so supplied or in the alternative the price of the same prevalent at the time of disposal of the suit should be paid. This order was challenged in appeal before the learned District Judge, Srinagar who transferred the appeal to the learned Ilnd Addl. District Judge, Srinagar. After hearing the counsel for the parties, the appellate court dismissed the appeal but imposed the condition that respondent shall not withdraw the amount of Rs.20,000/ - already deposited with the petitioner herein. Respondent had to make cash down payment against the quantity which was to be supplied to him at the agreed rate and in case there was a difference with the market rate then he had to give additional security of that amount before the trial court. This order was passed by the appellate court on 14 -07 -1988 which was challenged in revision petition before this court (C.R. No. 166/88). The revision petition was dismissed on July 27, 1988. The plea of the petitioners herein that supply of the remaining yarn was refused because respondent had failed to lift the whole quantity within one month, was met in the order with the observation that this was a matter to be tried by the trial court after the issues are framed and a question of evidence. It was also held that the present case was a case of allotment and the below had exercised their discretionary power in favour of the respondent so the impugned order was not arbitrary or violative of any law. It was reiterated that respondent had to pay the cost of difference in case the petitioners were held entitled to get higher cost than what was stipulated in 1986. The trial court was found to have exercised the jurisdiction not in violation of any principle of law or perverse in any manner so the order was maintained and the revision petition dismissed.