INDIAN AIRLINES CORPORATION Vs. RAMNIWAS LADURAM

JUDGEMENT

(1.) THE above three matters arise out of suit No. 10 of 1967 pending in the Court of District Judge, Merta. Miscellaneous Appeal No 13 of 1968 has been filed by defendants No. 1 and 3 to 6, Indian Air Lines Corporation and its officers, and Appeal No. 15 of 1968 has been filed by defendant No. 8 M/s, Dalam Chand Bajranglal, and both are directed against the same order of the learned District Judge, Merta dated 8-2-1968 whereby the learned District Judge, granted a temporary injunction in favour of the plaintiff M/s. Ramniwas Laduram restraining the defendants Nos. 1 to 7 i. e. the Indian Air Lines Corporation and its officers from giving delivery of the tyres and tubes in question to defendant No. 8 and also restraining the defendant No 8 from taking delivery of the same, till the decision of the suit. THE Civil Revision No. 156 of 1968 has been filed by the defendant No. 1, Indian Air Lines Corporation only against the order of the learned District Judge, Merta dated 8-2-1968 whereby he granted permission to the plaintiff under sec. 20 (b), Civil Procedure Code. Since common questions have been argued in all these three matter?, we consider it convenient to dispose them of together by a single judgment.

(2.) BRIEFLY stated, the plaintiff's case is that certain rejected tyres and tubes of Dakota, main wheel and tail wheel belonging to the Indian Air Lines Corporation defendant No. 1 (which for the sake of brevity will be hereinafter called the Corporation) had to be disposed of and therefore the Corporation issued a notice inviting tenders for these articles to 19 persons out of whom 7 persons, among whom defendant No. 8 is one, submitted their tenders. No notice was, however, issued to the plaintiff, who, having come to know of the notice submitted its tender personally in the office of the Controller of Stores of the Corporation on 2-12-1967. The tenders were opened on 5-12-1967, but the plaintiff's tender was not opened at all. The tender of defendant No. 8 being the highest out of the rest 7 tenders received by the Corporation was accepted and on 7-12-1967 an order was also issued by the Corporation for delivery of the articles to the defendant No. 8, who had paid the entire cost calculated according to the rates tendered by it the same day. The plaintiff's case is that the action of the Corporation in not opening its tender and accepting the tender of the defendant No. 8 was against the rules relating to such sales, as according to the plaintiff, the notice inviting tenders should have been published in news papers but no such publication had been made. The plaintiff has further alleged that he had tendered higher rates than the defendant No. 8 and if its tender had been opened, it would have been accepted in the ordinary course. It was also alleged that the defendant No. 8 is a bogus firm. On these allegations it was prayed that a decree "restraining the defendants Nos. 1 to 7 from giving delivery of the tyres and tubes regarding which tender of defendant No. 8 has been accepted by the defendants No. 1 to 7, till the tender of the plaintiff has been opened and considered and being the highest tender is accepted" be granted. Along with the plaint, the plaintiff also filed an application under O. 39, RR 1 and 2 C. P. C. supported by an affidavit for issue of a temporary injunction restraining the defendants Nos. 1 to 7 from giving delivery of the said goods to defendant No. 8. The learned District Judge granted an exparte injunction against the defendants on this application on 19-12-1967. This exparte injunction was confirmed by the learned District Judge on 8-2-1968 after hearing both the parties. Hence the Corporation as well as the defendant No. 8 have filed separate appeals from this order.

(3.) MR. Agarwal, learned counsel for the Corporation, argued in support of the appeal filed by the Corporation that the lower court had no jurisdiction to try the suit and the finding given by it while issuing the impugned order of injunction that it has jurisdiction to entertain and try the suit must be set aside, and the plaint must be ordered to be returned for presentation to the proper Court under O. VII, r. 10, Civil Procedure Code. He has rested his argument on one of the conditions contained in the notice inviting tenders, which is that 'all disputes arising out of this tender would be subject to the jurisdiction of Delhi Courts" and in support of his contention he has referred to Libra Mining Works vs. Baldota Bros. (2) Tam Bahadur Thakur & Co. vs. Devidayal (Sales) Ltd (3), and S. Manuel Raj & Co. vs. J. Manilal & Co. (4 ). On the other hand the learned Additional Advocate General MR. Vyas appearing for the plaintiff has relied upon M/s Lakhinarayan Ramniwas vs. L. T. S. P. A. D. N. S. in Telesta (5), and M/s Patel Bros vs. M/s Vadilal Kashi Das Ltd. , (6 ). We, however, do not think it necessary to decide this point in these appeals, firstly because the lower court itself has not given a firm finding on this point and has dealt with this question only incidentally while dealing with the application for grant of temporary injunction. At more than one place it has observed that it does not think it necessary to decide this point at this stage, though un-guardely it has observed at one place that the Court has jurisdiction to entertain the suit and try it. Learned counsel for the plaintiff frankly conceded that this observation should be taken only as tentative and the question of jurisdiction will have to be decided when the lower court proceeds to deal with the issues arising out of the pleadings of the parties. In view of the findings arrived at by us on the question of issue of temporary injunction the order dated 8-2-1968 passed by the learned District Judge, Merta is liable to be set aside and since we are setting aside that order we do not consider it necessary to go into the question of jurisdiction of the trial court to entertain and try the suit at this stage in these appeals, and leave this question to be decided by the lower court according to law.