JUDGMENT
K.L. Issrani, J.
1. The present appeal is against the order dated 29-1-1994 passed by the Court of IXth Additional Judge to the Court of District Judge, Jabalpur in Civil Suit No. 3-A/94 (D. K. Headlines v. Food Corporation of India), injuncting the appellants not to call any tenders or enter into any agreement to that effect till the tender of the plaintiff-respondent is disposed of by them.
2. According to the appellants for long route transport work of the appellants –Food Corporation of India, the District Manager at Jabalpur had invited quotations from the local parties. In the tenders invited, the respondent also submitted his tender. The tenders were opened on 30-11-1993 and the District Manager at Jabalpur, the appellant No. 2, submitted his recommendations to the Regional Manager, appellant No. 1, at Bho-pal as he is the final authority in the matter, the appellants further submit that the appellants in a meeting held on 7-12-1993 took a
decision to invite fresh tenders at the level of Regional Office at Bhopal, thereby none of the tenders were accepted and deemed to be rejected. According to their notice for inviting tenders, there, is a specific condition that the District Manager reserves his right to accept or reject summarily any one or all the tenders without assigning any reasons. It is decided in the meeting held on 10/17-12-1993 to invite fresh tenders at the level of Regional Manager, appellant No. 1 at Bhopal. Thereafter it is said that notice inviting the tenders was issued, which were to be submitted by 12-1-1994. The respondent had also purchased a tender form in pursuancce of this tender notice. But in the meantime, the respondent filed a civil suit with an application for grant of temporary injunction and obbtained an ex parte temporary injunction on 12-1-1994 though the notice of it was received by the appellant No. 2, District Manager, at 5.00 p.m. on 12-1-1994 and no notice of the same was receivbed by appellant No. 1. However, they appeared in the Court and the ex parte temporary injunction was confirmed by the impugned order dated 29-1-1994, hence this appeal.
3. In appeal, the submission is that no injunction is liable to be granted in a matter which could be compensated in terms of money, and the respondent if aggrieved should file a civil suit for damages only. For this; learned counsel for the appellants has pointed out M.P. State Amendments in the provisions of Order 39, C.P.C.. He also relies on provisions of Sections 14, 38 and 41, Clauses (e), (f) and (h) of the Specific Relief Act. To further support his contention, he also relied on the principles laid down in Gujarat £lectricity Board v. M/s. Mahesh Kumar & Co., AIR ,1982 Gujarat 289, Aziz Traders v. Chairman, G.E.B., AIR 1986 Gujarat and Prabhudas Bhai v. State of Gujarat, AIR 1981 Gujarat 117. He further referred to certain documents filed by him and submitted that the earnest money of Rs 5,000/- was tendered to the respondent personally but was refused, secondly it was sent by registered post but that was also refused. A sealed cover was shown to me and the counsel offered the earnest money to the
respondent in this Court. The respondent was present in the Court. With the consent of the respondent and his counsel, Kumari Chan-dana Mukherji, the sealed cover was opened and a Banker’s Draft of Rs. 5,000/- was handed over to the respondent along with covering letter. It was further argued that the Food Corporation of India is appellant. It has to transport foodgrains to various parts in Madhya Pradesh, which they are unable to supply because of the injunction order passed by the lower Court.
4. Submissions of the learned counsel for the appellants are opposed by the learned counsel for the respondent. She submits that the tenders were opened on 30-11-1993. The respondent is the lowest tenderer and he had already deposited earnest money. His tender should have been accepted. She further submits that even today, the transport work of foodgrains is carried out by the appellants through other transport companies, for which she has shown some documents. But her — submission is that as advanced by the learned counsel for the appellants that the appellants are prejudiced against the respondent because they alleged that some mischief was having been committed by the respondent in earlier tender contract which according to her is not a fact and that will amount to blanck-listing the respondent without hearing. She further submits that no stand for refund of earnest money was taken by the appellants before the trial Court. Because the subsequent tenders floated at Bhopal, in which lowest tender of G. T. Roadways whose quotations were much more than what were given by the plaintiff-respondent, was being proceeded, the respondent has no other alternative remedy except to file suit for injunction against the appellants which has been rightly granted and confirmed. According to the learned counsel for the respondent, the respondent has earned the goodwill and in case he is not granted the transport work he will be loosing his goodwill which cannot be compensated in terms of money. Therefore, the trial Court was right in granting the temporary injunction. Learned counsel for the respondent has relied on the principles laid down in Municipal Board, Mathura v. Dr. Radba Ballabh, AIR (36)
1949 All 301, Municipal Committee, Montgomery v. Master Sant Singh, AIR 1940 Lahore 377 and also Suresh Jindal v. Rissoli C.D.S. Prodsion, AIR 1991 SC 2092 : 1991 Suppl (2) SCC 3 and supported the order passed by the trial Court.
5. Before dealing with legal position in law, it is necessary to narrate certain facts on record. On 11-1-1994 the plaintiff-respondent has filed the suit for permanent injunction against the appellants and the prayer therein is as under :-
(1) A decree against the defendants restraining them from executing the tender proceedings to be held on 12-1-1994;
(2) to grant a decree of permanent injunction against the defendants restraining them from conducting work from any other bidder or transport company other than the plaintiff.
Along with the plaint, an application under O.39, Rules 1 and 2, C.P.C. was filed praying therein that the defendants be restrained from proceeding with the tenders to be opened on 12-1-1994.
6. The respondent was able to seek an ex parte interim order of temporary injunction against the appellants. According to the learned counsel for the appellants, the appellant No. 1 was not served and the notice on appellant No. 2 was served on 12-1-199.4 at 5.00 p.m.. They, however, contested the submission of the respondent, but the trial Court has confirmed the ex parte temporary injunction order by the impugned order dated 29-1-1994; hence this appeal. This Court thought it fit to hear the same finally instead of granting any stay. Thus the matter is heard finally in the presence of the parties. It is also necessary to mention the operative part of the impugned order dated 29-1-1994, which is as under:–
Without disposing of the tender of the plaintiff, the defendants will neither call any other tenders nor enter into such contract with others.
7. The first point raised by the learned counsel for the appellants is that such type of injunction cannot be granted by the lower
Court, in view of M.P. State Amendments under Order 39, Rule 2, C. P.C. relating to the contracts, which is as under:–
“Provided that no such injunction shall be granted –
(a) where no perpetual injunction could be granted in view of the provisions of Section 38 and Section 41 of the Specific Relief Act, 1963) No. 47
of 1963); or
(b) to stay the operation of an order for transfer, suspension, reduction in rank, com-pulsory retirement, dismissal, removal or otherwise termination of service of, or taking charge from any person appointed to public service and post in connection with the affairs of the State including any employee of any Company or Corporation owned or controlled by the State Government; or
(c) to stay, any disciplinary proceeding
pending or intended or, the effect of any
adverse entry against any person appointed to
public service arid post in connection with the
affairs of the State including any employee of
the Company owned or controlled by the
State Government; or
(d) to restrain any election; or
(e) to restrain any auction intended to be
made or, to restrain the effect of any auction
made by the Government; or to stay the
proceedings for the recovery of any dues
recoverable as land revenue unless adequate
security is furnished;
and any order for injunction granted in contravention of these provisions shall be void” M.P. Act 29 of 1984, Section 8(a) (14-8-1984).
8. Thus, in view of the provision of Sections 38 and 41 of the Specific Relief Act the above proviso was introduced by the M.P. State Amendment, which fact is not disputed. In order to interprete and appreciate the intention of the legislature it is necessary to reproduce the provisions of Sections 38 and 41 of the Specific Relief Act, which are as under:–
“38. Perpetual injunction when granted. —
(1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.
(2) When any such obligation arises from contract, the Court shall be guided by the rules and provisions contained in Chapter II.
(3) When the defendant invades or threatens to invade the plaintiffs right to, or enjoyment of, property, the Court may grant a perpetual injunction in the following cases, nemaly:–
(a) where the defendant is trustee of the property for the plaintiff;
(b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;
(c) where the invasion is such that compensation in money would not afford adequate relief;
(d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.”
“41. Injunction when refused.– An injunction cannot be granted –
(a) to restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which injunction is sought, unless such restrain is necessary to prevent a multiplicity of proceedings;
(b) to restrain any person from instituting or prosecuting any proceeding in a court not subordinate to that from which the injunction is sought;
(c) to restrain any person from applying to any legislative body;
(d) to restrain any person from instituting or prosecuting any proceeding in a criminal matter;
(e) to prevent the breach of a contract the performance of which would not be specifically enforced;
(f) to prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance;
(g) to prevent a continuing breach in which the plaintiff has acquissced;
(h) when equally efficacious relief can certainly be obtained by any usual mode or proceeding except in case of breach of trust;
(i) When the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the Court;
(j) when the plaintiff has no personal interest in the matter.”
It is also necessary to reproduce clause (a) of Section 14 of the Specific Relief Act:–
“Section 14. Contracts not specifically enforceable. –
(1) _____
(a) a contract for the non-performance of which compensation in money, is an adequate relief;”
9. Thus, according to clause (a) of Section 14 of the Specific Relief Act, a contract for the non-performance of which compensation in money, is an adequate relief cannot be specifically enforced. According to Section 38(2) of the Act, when any such obligation arises from contract, the Court shall be guided by the rules and provisions contained in Chapter II and according to clause (e) of Section 41 of the Act, an injunction cannot be granted to provent the breach of acontract the performance of which would not be specifically enforced and according to clause (h) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust. Certainly this is not a case of breach of trust, but at the most a breach of contract. This case cannot even be said to be a case of breach of contract because no contract was executed and entered into between the parties. It was offered by the respondent and it was for the appellants to accept the same. Though the offer was less than the other tenders, but it was not finally accepted.
10. As per the notice issued with the tender, it was for the appellants to accept the same or not without assigning any reason. Condition No. 12 of that notice reads as under:–
“12. Notwithstanding anyting contained in the above terms and conditions, District Manager, F.C.I., Jabalpur on behalf of F.C.I. reserves the right to accept or to reject summarily any one or all tenders without assigning any reasons or causes.”
11. In the note-sheet of the Department, Annexure-13, It was observed that M/s. D. K. Roadlines have quoted lowest rate but the same party has also quoted lowest rate in respect of another contract which was not considered in view of his relationship with the concern of Shri Inderlal Belani, who is involved in a fraud case which is under investigation. On this it was suggested that the tender enquiry may be floated from Regional Office, Bhopal, which proposal was accepted by the appellants No. 1 and this note-sheet is dated 10-12-1993 which proposal was accepted on 17-12-1993. Accordingly it is said that the fresh tenders for the same contract were floated from Regional Office, Bhopal and the respondent had also purchased tender form for the same. During the arguments, the respondent has not denied this position. On the contrary, as alleged, that since the tenders forms at Bhopal was not opened on 12-1-1994, the respondent was compelled to file the present suit.
12. How the remains that according to the version of the respondent also fresh tenders were floated from Bhopal. The appellants submit that as per tenders called from other including the respondent at Jabalpur no work order was given as per the proposal to float the same from Bhopal. Respondent, if any, was entitle for refund of earnest money deposited by him, which has now been refunded to him in this Court.
13. Now the only thing remains to be seen is as to whether the order of temporary injunction passed by the lower Court restraining the appellants not to take further proceedings in tender and give work order till the
tender of the respondent is decided and disposed of, is legal. So far as the allegation that in spite of the temporary injunction the appellants are giving work order to others is concerned, the same is denied by the appellants by saying that the papers shown by the respondent do not pertain to the same tender, which was filled in by the respondent. Whether under such circumstances the respondent has the remedy in existence, or any such injunction can be granted by the trial Court. Admittedly, none of the tenders at Jabalpur were accepted rather they were proposed to be floated afresh at Bhopal, which were floated and opened as shown by the respondent himself on 12-1-1994 but the submission of the learned counsel for the respondent is that the lowest tender in that case is much above the tender given by the respondent. In this position, according to me, the respondent is left with no cause of action except to come to the Court for permanent injunction against the appellants. At the most, the respondent can claim to have suffered some loss for not being allotted the tender but that also could have been granted when the same was allotted to any one else in Jabalpur other than respondent. Even if it is allotted to any one else at Jabalpur then the respondent’s claim is not such which cannot be compensated in terms of money. I do not agree with the proposition of the respondent that he has earned a goodwill and if he is denied the contract he will lose his goodwill by not giving a contract to him. In my opinion, the respondent will not lose his goodwill. If be has earned the goodwill, it will always remain with him. He knew that the fresh tenders for the same work are being called at Bhopal. He purchased the tender form also, but he never liked to submit his tender at Bhopal. Even if he thinks that he is entitled to the work order and has suffered some damages,he is free to file a suit for damages. A permanent injunction, as claimed by the respondent, in any case cannot be granted. Since the permanent injunction cannot be granted, an application for temporary injunction for the same does not He as is clear from the State Amendments under Order 39, Rule 2, C.P.C.. In view of the provisions of Clause (a) of Section 41 and also
Clauses (e) and (h) of Section 41 of the Specific Relief Act, no such injunction order can be passed by the Court.
14. Rulings relied on by the learned Counsel for the respondent and the trial Court Municipal Board, Mathura v. Dr. Radha Ballabh (supra) and Municipal Committee, Montgomery v. Master Sant Singh (supra), pertains to the recovery of the tax and are not applicable to the facts of the present case. So far as the principles laid down in Suresh Jindal v. Rissoli C.D.S. Prodsioni (supra) are concerned, it was a case of an agreement for the production and exhibition of a television serial and the concluded agreement was entered into between the parties. These facts therefore, are not applicable to the facts of the present case. In the case of Prabhudasbhai v. State of Gujarat (supra), it was held that the High Court will not sit in appeal against the administrative decisions to award or not to award a contract and substitute its own decision for the decision taken by the State Government. In respect of a contract the decision to award contract can be quashed and set aside provided it is established that the decision is arbitrary and discriminatory so as to attract Article 14 of the Constitution of India. Merely because the lowest bid is not accepted, it cannot be said that the decision is rendered arbitrary. Moreover, in the present case tender of none of the tenderers was accepted. In the case of Gujarat Electricity Board v. Mahesh Kumar & Co. (supra), it was held that where a Judge came to a finding that the defendant could be compensated in terms of money, it was held that the Judge lacked jurisdiction to grant interim injunction in view of Sections 14 and 41 of the Specific Relief Act. So also in Asia Traders v. Chairman, G.E.B. (supra) in a case of Public Undertaking i.e. State Electricity Board, when the Court restrained sale by interim injunction on application of one of the tenderers, it was held that the Court failed to consider losses likely to be caused to Board by such order and the order passed by the Court was set aside. In this case also, the submission of the learned Counsel for the appellants is that the Food Corporation is required to
supply essential commodities like foodgrains to various places in the State. In case it is restrained from doing so, there will be chaos and disorder in public and the public general will comparatively suffer a grave loss and injury than the respondent. Therefore, the comparative loss to the appellants will be much more than the loss to the respondent. In this case, the Gujarat High Court has relied on the principles laid down in Asst. Collector, C.E., Chandah v. Dunlop India Ltd., AIR 1985 SC 330 and has held that the Court should be slow to interfere with the actions of the State and the public sector undertakings where even the temporary orders that may be passed by the Court are likely to have far-reaching financial and administrative consequences.
15. In view of the above circumstances, I find that the order of temporary injunction passed by the lower Court is not correct, legal and valid. It is, therefore, set aside. Consequently, the appeal is allowed. However, the parties are directed to bear their own costs.