JUDGMENT
Dr. Mukundakam Sharma, J.
1. By this order I propose to dispose of the
applications registered under Order 7 Rule 11 CPC
read with Order 23 Rule 1 Sub-rule 4 CPC being IA
No. 1722/2002 in Suit No. 1506/2001 filed on behalf
of some of the defendants and also IA No. 1312/2002
in Suit No. 1508/2001 under Order 23 Rule (1)(4) CPC
filed on behalf of some of the defendants. The
plaintiff herein is common in both the suits. The
applications are also similar in nature and,
therefore, both the applications are disposed
of by this common order.
2. The plaintiff herein earlier filed two
suits before the Additional District Judge, which
were registered as Suit No. 40/2001 and Suit
No. 41/2001. The plaints of the said suits are
annexed with the applications, which are under
consideration.
3. The following reliefs were prayed for by
the plaintiff in suit No. 40/2001 and the same are
extracted here as they are relevant for the purpose
of consideration of the application
“(i) A Decree of Declaration in favor of the
Plaintiff Company and against the Defendants
thereby declaring that the auction held on
28/1/2000 of the property bearing No. SFS-15, DSIDC
Industrial complex, Nangloi, Delhi in favor of the
Defendants No. 1 to 3 by the Recovery Officer is
illegal, unfair, null and void and of no effect in
law.
(ii) A Decree of Permanent Injunction in
favor of the Plaintiff Company and against the
Defendants thereby restraining the Defendants,
their servants, agents, employees, officers,
representatives, assignees or anybody claiming
through them or on their behalf from getting the
lease deed executed and registered in their favor
from DSIDC and further from alienating,
transferring, selling, mortgaging, letting, part
with the possession or otherwise creating any third
party interest of any nature whatsoever in the suit
property bearing No. SFS-15, DSIDC Industrial
Complex, Nangloi, Delhi.”
4. Similarly, the following reliefs were
prayed for by the plaintiff in suit No. 41/2001,
which are extracted for the convenience:-
“(i) A Decree of Declaration in favor of the
plaintiff company and against the Defendants
thereby declaring that the auction held and
conducted on September 27, 2000 as also on
September 30, 2000 of the suit goods machinery in
favor of the Defendants No. 1 to 3 is bad, unfair,
illegal, null and void and of no effect in law.
(ii) A Decree of Permanent Injunction in
favor of the plaintiff company and against the
Defendants thereby restraining the Defendants,
their servants, agents, employees, officers,
representatives and/or anybody claiming through
them or on their behalf from in any manner
whatsoever alienating, transferring, selling,
mortgaging, letting, parting with the possession or
otherwise creating third party interest of any
nature whatsoever in respect of the suit goods and
the machinery.
5. Both the suits were listed before the
Additional District Judge on 6.2.2001. The
Additional District Judge ordered for registration
of the suits and after hearing the counsel
appearing for the plaintiff issued summons in both
the suits and directed issuance of notice on the
interim applications to the defendants. However,
no injunction was granted by the Additional
District Judge on the said date and only issued
notice on the said injunction application. On
14.2.2001, counsel for the plaintiff made a
statement that the plaintiff would be withdrawing
the suit on the ground that there are some
technical defects and sought for an adjournment to
seek instructions from the plaintiff. There was no
statement of the counsel that he would seek liberty
to file a fresh suit. On 16.2.2001, when the suit
was again listed before the Additional District
Judge, it was again stated by the counsel appearing
for the plaintiff that there are some technical
infirmities in the suit and, therefore, he has
instructions to withdraw the suit. Even on that
day also no prayer was made that liberty be granted
to the plaintiff to file fresh suits on the same
cause of action. The suit was accordingly
dismissed as withdrawn. Therefore, before the
defendants could be served, the aforesaid suits
were withdrawn by the plaintiff. Thereafter the
plaintiff filed the present suits in this court
with the following reliefs:
” SUIT NO. 1506/2001
i. A decree of Declaration in favor of the
Plaintiff Company and against the defendants
thereby declaring that the auction of the suit
property, being raw material, stocks as also the
plant and machinery lying in the premises bearing
No. SFS-15, DSIDC Industrial Complex, Nangloi, New
Delhi, held on 30.1.2000 by the Recovery Officer is
illegal, unfair, null and void and of no effect in
law.
ii. A Decree for Mandatory Injunction inter
alia directing the Recovery Officer being Defendant
No. 14 herein to re-auction the suit property being
the raw material, stocks as also the plant and
machinery lying at SFS-15, DSIDC Industrial
Complex, Nangloi, New Delhi in the most genuine and
fair manner.
” SUIT No. 1508/2001
i. A decree of Declaration in favor of the
Plaintiff Company and against the defendants
thereby declaring that the auction of the suit
property, being Industrial Shed No. SFS-15, DSIDC
Industrial Complex, Rohtak Road, New Delhi, held on
28.1.2000 by the Recovery Officer is illegal,
unfair, null and void and of no effect in law.
ii. A Decree for Mandatory Injunction inter
alia directing the Recovery Officer being Defendant
No. 12 herein to re-auction the suit property being
the Industrial Shed No. SFS-15, DSIDC Industrial
Complex, Rohtak Road, New Delhi in the most genuine
and fair manner.
6. After service of summons and notice on
the defendants, the defendants have entered
appearance and the aforesaid applications have been
filed by some of the defendants praying for
dismissal of the suits on the ground that the suits
are barred under the provisions of Order 23 Rule 1
Sub-rule (3) and (4) CPC.
7. I have heard the counsel appearing for
the parties on the aforesaid contentions raised on
behalf of some of the defendants. In the Suit
No. 1506/2001, the plaintiff has prayed or a decree
of Declaration declaring that the auction of the
suit property, being raw material, stocks as also
the plant and machinery lying in the premises in
the auction held on 30.1.2000 by the Recovery
Officer is illegal, unfair, null and void.
8. It is necessary to mention at this stage
that the aforesaid auction of the raw materials was
done pursuant to the orders dated 7.1.2000 of the
Supreme Court in SLP (C) 5214/1999 and dated
8.9.2000 in IA No. 9 in Civil Appeal No. 2536/2000.
The Supreme Court earlier passed an order on
13.8.1999 directing sell of certain properties
belonging to M/s M.S. Shoes (East), the plaintiff
herein. The relevant portion of the order reads as
follows:
“It appears that the ale which was
directed to be held in the above said order
was not held in view of the order dated
29.6.99 passed by the Presiding Officer,
Debts Recovery Tribunal, New Delhi.
However, the said order dated 29.6.99 has
since been stayed by the Debts Recovery
Appellate Tribunal, Mumbai in Appeal No. 83
of 1999 ….. We accordingly, direct
that our order dated 14.5.99 directing the
sale of assets should be implemented
forthwith, the sale proceeds whereof shall
be deposited in this Court which the
Registrar (Judicial) shall deposit in a
fixed deposit in a nationalised bank for a
period of six months.”
9. Having referred to the aforesaid earlier
order, it was further ordered by the Supreme Court
on 7.1.2000 that the sale would go on as per
earlier directions of the Supreme Court and as
scheduled and the sale proceeds thereof shall be
deposited in the Supreme Court Registry.
10. In the subsequent order dated 8.9.2000,
the Supreme Court held that in order that the
auction-purchaser could have vacant possession of
the property, a direction is issued to the Canara
Bank to remove the goods and machinery within one
month from the property sold. It was further held
in the said order by the Supreme Court that the
Canara Bank would be entitled to sell the goods and
machinery under hypothecation by auction, at the
cost and risk of debtors.
11. Pursuant to the aforesaid orders, the
auction was carried out by the Recovery Officer and
the said auction is under challenge in the present
suits. As is indicated from the Reliefs extracted
herein above, the earlier suits were also filed by
the plaintiff wherein the first relief as prayed
for in the said suits and the first relief prayed
for in the present suits are identical in nature.
In the said relief, the plaintiff has sought for a
declaration declaring the auction to be null and
void and illegal. In the present suits, the second
relief that the plaintiff has prayed for is for a
decree for mandatory injunction inter alia
directing the Recovery Officer to re-auction the
suit property being the raw material, stocks as
also the plant and machinery in a genuine and fair
manner. So far the second relief is concerned, it
is to be noted that unless the first relief is
granted, the second relief cannot be granted.
Therefore, the second relief, as sought for, is
entirely dependent on the grant or refusal of the
first relief by this Court.
12. In the earlier suit, the plaintiff apart
from relief A sought for another relief, namely,
for grant of temporary injunction restraining the
defendant from selling, transferring, alienating
the suit property. In the said suit, no relief of
ad interim injunction was granted and immediately
thereafter the suit was withdrawn. While
withdrawing the aforesaid suit, no liberty was
prayed and availed of by the plaintiff. Although
it was stated by the counsel that in view of
infirmities in the suit, the plaintiff is
withdrawing the suit, however it is not stated in
the orders of the Additional District Judge that any
such liberty to file a fresh suit was prayed for by
the plaintiff. The suits were withdrawn without
any liberty to file fresh suits on the same cause of action.
13. In that view of the matter, in my
considered opinion, the provisions of Order 23 Rule
1(4) CPC are attracted. The relevant provisions
read as follows:
“(4) Where the plaintiff –
(a) abandons any suit or part of claim under
Sub-rule (1), or
(b) withdraws from a suit or part of a claim
without the permission referred to in Sub-rule (3),
he shall be liable for such costs as the Court may
award and shall be precluded from instituting any
fresh suit in respect of such subject-matter or
such part of the claim.”
14. So far relief ‘A’ is concerned, in both
earlier and the suits they are identical in nature
whereas relief ‘B’ prayed for in the present suit
is entirely dependent on grant of relief ‘A’ and,
therefore, since the plaintiff had withdrawn the
earlier suits without liberty to institute fresh
suits in respect of the same subject matter, the
present suits are barred under Order 23 Rule 1
Sub-rule 4 CPC read with Sub-rule 3 and, therefore,
the plaints filed by the plaintiff in the present
suits are liable to be rejected in view of
provisions of Order 7 Rule 11 CPC.
15. There is another aspect, which requires
attention at this stage. The present suits are
filed by the plaintiff as is indicated above
seeking for almost similar relies as sought for in
the suits earlier filed before the Additional
District Judge. However, in the present plaints,
not a whisper has been made by the plaintiff about
filing of the earlier suits in the court of the
Additional District Judge. Since submit matters
identical, it was necessary for the plaintiff to
mention and disclose filing of earlier suits and
its withdrawal. There is, therefore, suppression of
materials facts by the plaintiff and it has not
come with clean hands. This speaks volume with
regard to the conduct of the plaintiff. Be that as
it may, considering the entire facts and
circumstances of the case and in the light of the
discussion above, I pass an order rejecting both
the plaints in the present two suits in terms of
Order 7 Rule 11 of the Code of Civil Procedure.
Both the applications are allowed and the suits
stand closed.
Crl.M.(M) No. 717/2002 in Suit No. 1506/2001 and
Crl.(M) M. No. 716/2002 in Suit No. 1508/2001
In view of the aforesaid order passed,
counsel for the defendant states that he does not
press these applications at this stage.