CENTRAL COALFIELDS LTD. Vs. JUGNU CONSTRUCTION

JUDGEMENT

(1.) THIS appeal is directed against the order dated 22.5.2002 passed by 3rd Sub Judge, Bermo at Tenughat in money suit No. 2/2002 by which he has allowed the application filed by the defendant -respondent under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure and issued temporary injunction in mandatory form directing the appellant to allow them to lift the ash contents/remains of the briquettes which is lying in the premises of the appellant.

(2.) THIS case has a checked history. In the year 1982 a contract was entered into by and between the appellant and the respondents whereby a work order was issued in favour of the respondent for dispatch of slurry after converting into briquettes within the premises of the appellant on certain terms and conditions including payment of royalty, cess, sales tax, excise duty etc. A dispute arose with regard to payment of cess and royalty and a writ petition was filed by the respondent being CWJC No. 1232/98(R). The writ petition was dismissed by this Court holding that the respondent had agreed to pay, cess, royalty etc. The respondents preferred special leave petition before the Supreme Court being SLP No. 9365/89. In that appeal a interlocutory application was filed by the respondents seeking permission of the Court for removal of Ash. The Supreme Court vide order dated 25.4.1990 permitted the respondent to remove the Ash from the property of the appellant subject to the condition that all the removal should be duly accounted for by measuring the quantity and by furnishing cash amount of Rs. 10 lakhs or bank guarantee of a nationalized bank. The said special leave petition was converted into Civil Appeal No. 3778/89 and the same was ultimately dismissed on 30.4.1991. The Supreme Court while disposing of the Civil Appeal directed both the parties to appear before this Court for adjudication of the dispute relating to the amount of sale of the slurry. On remand the learned Single Judge of this Court vide order dated 11th March, 1998 held that the dispute could not be adjudicated upon by the High Court in a proceeding under article 226 of the Constitution of India. The matter again went to Supreme Court in SLP No. 312/92. The special leave petition filed by the respondents was dismissed on 28.1.1999. In the meantime the Financial Directors of the appellant company in a decision taken in its 7th meeting, in respect of the proposal for arriving at a price to be charged for lifting ash after manufacture of briquettes modified their earlier decision and decided for the recovery of the price of the ash. In view of the said decision the appellant filed interlocutory application being IA No. 5, in the Supreme Court for a direction for the recovery of the amount from the respondent. The Supreme Court dismissed the IA No. 5 filed in Civil Appeal No. 3778/89 but held that the respondents shall be free to take steps for the purpose of recovery of the amount. The plaintiff thereafter filed the instant suit being money suit No. 2/2002 for the recovery of a sum of Rs. 3,96,734,55.87 along with Interest and mesne profit. In the said suit issues were framed and hearing of the suit commenced and plaintiff appellant examined few witnesses. In the meantime the defendant respondent filed a petition purported to be under Order XXXIX, Rules 1 and 2 read with Section 151, CPC praying therein that they may be allowed to collect and remove the material (ash) from the site and restrain the appellant from interfering with that such removal. The plaintiff appellant opposed the said application by filing rejoinder. The Court below after hearing the parties allowed the application and allowed mandatory injunction restraining the appellant from interfering with the removal of ash/slurry by the defendant from the site, hence this appeal.

(3.) MR . Binod Poddar on the other hand submitted that the Ash being a perishable commodity if kept in the site may be washed away by rain and the accountability and liability for payment of price of the commodity is still to be decided. Learned counsel submitted that the court below rightly granted mandatory injunction. However, Mr. Poddar submitted that the defendant respondent is ready to furnish Bank guarantee for the value of the ash to be removed by the defendant and in this way no irreparable injury will be caused to the appellant.