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2004 Supreme(Guj) 321
Gujarat High Court
Judgename :K.A.Puj
GUJARAT STATE CIVIL SUPPLIES CORPORATION LIMITED - Appellant
Versus
AMAR TRADING COMPANY - Respondent
APPEAL FROM ORDER389 of 2003
Decided On : 05/04/2004
Headnote:(a) Civil Procedure Code, 1908 (Central Act 5 of 1908) - Order 39 Rules 1 & 2 - Interim relief - Grant of mandatory directions - Permissible to be issued only in rare cases and when in the opinion of the Court issuing such direction all the three celebrated principles of granting interim injunctions namely prima facie case, balance of convenience and irreparable loss are found to be in existence in favour of claimant.
The legal position is well settled with regard to granting of interim relief. The mandatory order cannot be passed easily or as a matter of course. The mandatory direction can be issued only in rear cases and in the opinion of the Court issuing such direction, all the three celebrated principles of granting interim injunction are found to be in existence. Mere prima facie case is not sufficient for the purpose of granting mandatory relief at the interlocutory stage in the pending suit, over-and-above this, a balance of convenience must also be in favour of the party claiming such interim relief and if the interim relief is denied at such stage, an irreparable loss or injury would be caused to the party claiming such interim relief.
[Para 18]
(b) Civil Procedure Code, 1908 (Central Act 5 of 1908) - Order 39 Rules 1 & 2 - Interim relief - Return of Security deposit - Propriety of order - As per terms of contract if the goods are not in conformity with the criteria laid down under the provisions of PFA Act or Rules framed there under the goods are bound to be rejected and security deposit to be forfeited - In the present case even if it is assumed that the respondent, original plaintiff had a strong prima facie case, as far as the balance of convenience and irreperable loss or injury are concerned the Court does not find much substances - Therefore, trial Courts impugned order of return of security deposit is not sustainable.
In the present case, even if it is assumed that the respondent - original plaintiff had a very strong prima facie case in its favour and the plaintiff is likely to succeed ultimately in the suit, as far as the balance of convenience and irreparable loss or injury are concerned, the Court does not find much substance as it appears from the record that the presence of Kesari was found, though in small quantity and as per the terms of the contract, if the goods are in not conformity with the criteria laid down under the provisions of P.F.A. Act or the Rules framed thereunder, the goods are bound to be rejected and in that case, the authority is empowered to forfeit the security deposit. Unless and until, the rival contentions of the parties are examined threat-bare and unless and until, necessary evidence are led by the parties in support of their respective claims, it is difficult to decide as to the balance of convenience is in whose favour. Even otherwise, what is claimed by the respondent original plaintiff in the application Exh. 21 is the return of security deposit and what is granted by way of interim relief by the trial Court, is a mandatory direction to the appellant Corporation to return the security deposit of Rs. 15,50,000/-. The interim relief granted in terms of monetary value only and even if it was not granted at this stage, it could not have been stated that an irreparable loss or injury was caused to the respondent original plaintiff, which could not be compensated in terms of money. The Court is, therefore, of the view that no strong case is made out with regard to the balance of convenience and irreparable loss or injury and hence, the mandatory order could not have been passed by the trial Court directing the appellant Corporation to return the security deposit of Rs. 15,50,000/- to the respondent original plaintiff.
[Para 18]
(c) Civil Procedure Code, 1908 (Central Act 5 of 1908) - Order 39 Rules 1 & 2 - Interim relief - Direction to return security deposit - On grant of such interim relief which is claimed in suit possibly nothing remains in the suit - Such relief is not admissible at interim stage specially when there is no allegation that decree ultimately passed will not be executable.
If the security deposit is directed to be returned at the interlocutory stage, possibly nothing remains in the suit and the final relief which is claimed in the suit is allowed at the interlocutory stage. The Honble Supreme Court has deprecated this practice and it is clearly held in the case of Bank of Maharashtra vs. Race Shipping and Transport Co. Pvt. Ltd. & Anr., AIR 1995 SC 1368, that the practice of granting interim order which practically gives the principal relief sought in the petition for no better reason than that a prima facie case has been made out, without being concerned about the balance of convenience, the public interest and a host of other consideration, is deprecated. Here in the present case, as observed earlier, there may be prima facie case in favour of the respondent - original plaintiff, however, there is no balance of convenience nor any public interest. The claim is return of the security deposit. If the respondent - original plaintiff, ultimately succeeds in the suit, it will get the said amount from the appellant - Corporation. It is also not the case of the respondent - original plaintiff that even if the respondent original plaintiff succeeds in the suit, it would not be possible to execute the decree which may be passed in its favour. The financial worth of the appellant - Corporation cannot be doubted as it is the Government Corporation and the Corporation is under an obligation to return the deposit in case the respondent original plaintiff succeeds in the suit, subject to its right of appeal, etc. Thus, the decree which may be passed, may not merely be a paper decree but it can certainly be executed against the appellant Corporation.
[Para 20]
( 1 ) THIS Appeal from Order is filed by the present appellant - original defendant against the order dated 01. 10. 03 passed by the learned Civil Judge (S. D.), gandhinagar below application Ex. 21 in Regular Civil Suit no. 129 of 2003, whereby the learned trial Judge has allowed the said application Ex. 21 and has directed that on depositing of Rs. 2. 00 lakhs as security by the respondent - original plaintiff, the appellant corporation should refund the amount of security deposit of Rs. 15,50,000 fothwith.
( 2 ) THE brief facts giving rise to this present appeal from order are as under :-2. 1 the appellant is being a Government Company engaged in the work of public distribution system, invited tenders for purchase of 1025 Metric Tonnes ("m. T. " for short) of Bengal gram (whole) to fulfill the requirement of Bengal gram under the Integrated Child development Scheme. The tenders were invited pursuant to the tender notice dated 18. 03. 03 and the tender document contained terms and conditions of bidding. As per the tender document, the gram to be supplied was to be in conformity with the provisions of the Prevention of Food adulteration Act, 1954 ("p. F. A. Act" for short) and the rules framed thereunder called Prevention of Food adulteration Rules, 1955 ("p. F. A. Rules" for short ). Ex. 2 of Part-II of tender document prescribed quality specifications of Bengal gram (whole) to be supplied as per the tender document. Clause (f) under the caption "general Characteristics" states that the gram to be supplied by the tenderer were to conform to P. F. A. Rules. 2. 2 it is the case of the appellant that after negotiations, the tender of the respondent - plaintiff for sale and supply of 775 M. T. of gram came to be accepted. The said quantity was to be supplied in two parts. The first part consisting of 387. 5 M. T. was to be supplied between 06. 05. 03 to 19. 05. 03 whereas remaining part of 387. 5 M. T. was to be supplied between 20. 05. 03 to 12. 06. 03. As the gram was urgently needed for the requirements of Integrated Child Development scheme, tender document provided for penalty for late delivery. However, the contract contained condition for late delivery only to the extent of seven days from the stipulated date. The tender of the respondent - original plaintiff, having thus been accepted, it was given order dated 05. 05. 03 for supply of 775 M. T. of gram and on 08. 05. 03 contract was signed between the parties. 2. 3 it is the say of the appellant that as against the supply of 387. 5 M. T. gram between 06. 05. 03 to 19. 05. 03, the respondent plaintiff in all offered 368. 5 m. T. of gram. Out of that, 87. 45 M. T. of gram being in conformity with the provisions of P. F. A. Act and the rules, was accepted. The quantity accepted by the appellant Corporation was on the basis of it being found in order on physical verification and as per the in-house laboratory report in which Kesari was noticed to be absent. The say of the appellant was that the said quantity was accepted not on the basis of any analysis report of Food and Drug Laboratory, Vadodara, but on the basis of satisfaction by the appellant Corporation as per the in-house QC report and on physical verification as to the absence of Kesari grains in Bengal gram supplied and accepted by the Corporation. 43. 5 M. T. of gram was rejected in view of the fact that it did not conform to the quality specification. It is also the say of the appellant that part of quantity was rejected because it contained Kesari gram and part of it was rejected because it contained foreign matters. The appellant has kept the quantity of 237. 55 M. T. in abeyance since it was apparent on physical verification that the gram contained kesari gram as well. It was further contended that in order to confirm the identity of Kesari gram, certain grams were picked up from some of the stock and sent for analysis to Food and Drug Laboratory, Vadodara, who has reported those grains to be Kesar
