JUDGMENT (Dr. ARIJIT PASAYAT)

1. Leave granted.

2. Challenge in this appeal is to the judgment of a Division Bench of the Allahabad High Court disposing of appeal (FAFO No. 1339-D of 2007) which was preferred by the appellant against the order dated 31.8.2007 passed by learned Judge of Small Causes Court/Civil Judge (Senior Division) Agra, in Suit No. 285 of 2007. By the said order the application for interim mandatory injunction was disposed of with certain directions.

3. Background facts as projected by the appellant giving rise to the appeal in a nutshell are as follows:

On 17.9.1996 an agreement was entered into between the appellant and the respondent for supply of gas. The agreement was valid upto 31.3.2002 and was further extended from time to time upto 31.3.2006. On 3.12.2004 officials of the appellant inspected the factory premises of the respondent and found that gas supply has been tampered with. Similar incidents were noticed on 15.1.2005 and 17.3.2005. Therefore on 28.5.2005 gas supply was discontinued.

4. The Respondent filed writ petition No. 44679 of 2005 before the Allahabad High Court. By order dated 18.7.2005 the High Court dismissed the writ petition on the ground that alternative remedy of arbitration was available under Section 9 of the Arbitration and Conciliation Act, 1996 (in short the `Arbitration Act). The order was not challenged by the respondent.

5. On 10.8.2005 proposal was given for restoration of gas supply on the respondent furnishing undertakings, which was in fact done. Thereafter gas supply was reconnected on 22.2.2006. It was again found that the gas meter was tampered with, which lead to disconnection on 28.2.2006. On 27.3.2006 an order was passed by the District Judge, Agra to continue gas supply till 31.3.2006. On 3.4.2006 gas supply was stopped.

6. Again a writ petition was filed by the respondent i.e. Writ petition No. 2283 of 2006. By order dated 1.11.2006 the Allahabad High Court disposed of the writ petition holding that the proper remedy for the respondent was to make a representation to the appellant since no mandamus can be issued for extension of contract or for giving benefit to any proposed contract.

7. On 29.3.2007 appellant indicated the terms for re-connection namely deposit of 50% of the outstanding amount of Rs.8,10,79,057/- and security for balance through mortgage of immovable property and clearance of all outstanding dues in respect of the gas supply.

8. Civil Suit No.285 of 2007 was filed by the respondent with inter alia a prayer for directing the appellant to execute the deed of renewal of gas supply without demanding any payment or security.

9. An application was filed by the appellant in terms of Order VII Rule 11 of the Code of Criminal Procedure, 1908 (in short the `CPC) and Section 8 of the Arbitration Act. Learned Civil Judge directed that the fresh proposal dated 9.2.2006 should be given effect to without any further terms and conditions. As noted above an appeal was preferred which was disposed of by the impugned order dated 18.9.2007 on certain terms. The terms read as follows:

1. The Plaintiff-Respondent shall deposit a sum of two crores with the respondent and a security to the tune of six crores in the form of second charge of the immovable property along with bond for payment with the Defendant-Appellant.

2. Out of two crores, the plaintiff-respondent shall deposit a sum of Rs.50 lac with the defendant- appellant within a period of one month. The security to the tune of six crore will also be deposited within a month.

3. They will further continue to deposit a sum of Rs.5 lac per month with the plaintiff-respondent in the first week of every month till entire Rs. two crores are deposited. The first installment of Rs.5 lac will start from the month of November, 2007 i.e., the first installment of 5 lac has to be paid by 7th of November, 2007. These deposits will be in addition to the charges of the gas to be supplied to the Plaintiff-Respondent. They wi