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AO/42320/2007 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL
FROM ORDER No. 423 of 2007
With
CIVIL
APPLICATION No. 14786 of 2007
In
APPEAL
FROM ORDER No. 423 of 2007
With
APPEAL
FROM ORDER No. 424 of 2007
With
CIVIL
APPLICATION No. 14788 of 2007
In
APPEAL
FROM ORDER No. 424 of 2007
=========================================================
SWASTIK
OVERSEAS CORPORATION THROUGH POA REJESH B MEHTA - Appellant(s)
Versus
GOLD
CREST EXPORTS - Respondent(s)
=========================================================
Appearance
:
MR
ASHISH M DAGLI for
Appellant(s) : 1,
MR ANSHIN H DESAI for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 04/09/2008
ORAL
ORDER
These
appeals arise out of a common order dated 16th October
2007 passed by the learned Addl. Senior Civil Judge and J.M.F.C.,
Jamnagar below application Exs.6 and 28 filed by the appellant
herein, original plaintiff.
Between
the appellant and the respondent, i.e. plaintiff and defendant,
certain agreements to sell castor oil seeds had taken place in the
year 2004. Towards the margin money for the transaction in question,
the appellant had paid a sum of Rs.1,56,00,000/-. Subsequently,
however, legal disputes arise between the parties. It is the case of
the defendant that the plaintiff did not lift the goods since the
price of castor oil seeds in the meantime crashed. However, it is
the case of the plaintiff that the defendant had supplied
consignment of castor oil seeds which was of inferior quality and
as a commission agent when the plaintiff had supplied the same to the
consumer, he had received complaint and had to bear the entire cost
of the consignment.
For
the said legal controversy, the plaintiff filed Special Civil
Suit No.94/07. In the said suit, he filed interim applications Ex.6
and Ex.28. In application Ex.6, the plaintiff made the following
prayers:
(A) Kindly
pass an order of injunction against the Defendant and in favour of
the Plaintiff and it be ordered that the Defendant or its agent
servant etc. are prohibited for transferring the goods i.e. Caster
Seeds and Jiru lying at Parth Oil Mill Compound, known as old R.T.
Mill, near Kapad Mill Compound, Bedeshwar, Jamnagar where the
Defendant has kept its above goods till the final disposal of the
suit without obtaining the previous order from this Hon’ble Court
in the interest of justice.
(B) Kindly
also pass an order to the Defendant to furnish the solvent security
of the suit amount to the satisfaction of this Hon’ble Court before
disposing its property above mentioned in the interest of justice.
(C) Any
other ancillary relief for which the plaintiff is found entitled at
law may kindly be granted.
In
Application Ex.28, the prayers made by the plaintiff read as follows:
(A) Kindly
pass an order of injunction against the Defendant and in favour of
the Plaintiff and it be ordered that the Defendant or its agent
servant etc. are prohibited for transferring the goods i.e. Caster
Seeds and Jiru lying at Laxmi Cold Storage, Plot No.104, Phase -4,
G.I.D.C., Naroda, Ahmedabad and R.K.Industries, Plot No.55, Phase 2,
G.I.D.C. Naroda, Ahmedabad where the Defendant has kept its above
goods till the final disposal of the suit without obtaining the
previous order from this Hon’ble Court in the interest of justice.
(B) Kindly
also pass an order to the Defendant to furnish the solvent security
of the suit amount to the satisfaction of this Hon’ble Court before
disposing its property above mentioned failing which attachment
order of the properties lying at Laxmi Cold Storage & R.K.
Industries be passed in the interest of justice.
(C) Kindly
also pass urgent ex-party orders for injunction etc. against the
defendant pending hearing and final disposal of this application in
the interest of justice.
(D) Any
other ancillary relief for which the plaintiff is found entitled at
law may kindly be granted.
These
applications came to be heard together and came to be dismissed by
the Trial Court by a common order. The plaintiff is before this
Court in appeals.
Learned
advocate Shri Dagli appearing for the appellant at the outset
submitted that prayer (A) in both the applications had become
infructuous by the time the suit was filed. He, however,
submitted that the Court below erred in not granting protection to
the plaintiff by requiring the defendant to give bank guarantee or
some other security.
Having
heard the learned advocates appearing for the parties and having
perused the order under consideration, I find that long before the
present appellant filed the above-mentioned suit, the respondent had
instituted Special Civil Suit No.191/94 on 27th December
2004 with respect to the same transaction and had claimed damages
from the appellant herein. The appellant did not take any legal
steps for nearly three years thereafter. Long after the suit of the
present respondent came to be instituted, the appellant has
approached the Trial Court and filed a suit seeking recovery of the
amount paid and in the meantime has prayed for protection in the
form of bank-guarantee or such other security from the respondent
i.e. defendant in the said suit.
I
find that there are number of disputed questions which need to be
gone into before rights of the parties can be finalized. There is no
possibility of granting the prayer made by the appellant. The same
would amount to granting attachment before judgment. When the
defendant has prima facie made out a case that he had sent letters
and communications urging the plaintiff to lift the goods and when
the defendant herein has also instituted suit claiming damages for
the very same transaction which was filed in the year 2004, I do not
find that the appellant can succeed in getting the prayers made in
applications Ex.6 and Ex.28.
The
Court below has gone into all aspects of the matter and found it
appropriate not to grant the prayers. I see no infirmity or
illegality in such an order. The defence of the defendant seems
plausible. No case for attachment before judgment is made out. The
Court below was therefore justified in not granting such prayers.
Needless
to state that the above observations are only for dealing with the
interim applications and would prejudice neither parties in
pursuing all contentions available in the pending suit.
Subject
to the above observations, appeals are disposed of. Civil
Applications also stand disposed of.
(Akil Kureshi, J.)
(vjn)
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