1 IN THE HIGH COURT OF JUDICATAURE FOR RAJASTHAN AT JODHPUR. JUDGMENT. M/s Vijay Solvex Limited vs. Vikas W.S. P Limited & ors. S.B.Civil Misc. Appeal No.1495/2006 against the order dated 21.9.2006 passed by the learned District Judge, Sri Ganganagar in Civil Misc. Application No.77/2006 in Civil Suit NO.99/2006. Date of Judgment: December 21st , 2006 PRESENT. HON'BLE MR. PRAKASH TATIA, J. Mr. M. Mridul, Senior Advocate with Mr. Amol Vyas for the appellant. Mr. Rajendra Mehta for the respondent No.1. No body appears on behalf of respondents No.2 to 5 despite service. REPORTABLE BY THE COURT: This appeal is against the order of the learned District Judge, Sri Ganganagar dated 21.9.2006 passed in Civil. Misc. Application No.77/06 by which the learned trial court allowed the injunction application filed by the plaintiff-respondent no.1 and restrained respondents no.2 to 5- defendants from alienating the properties of Sri Ganganagar Cotton Complex Limited including the land, building, plant and machinery situated at Udhyog Vihar Area of RIICO, Sri Ganganagar. Detail facts of the plaintiff's case are necessary because they are peculiar and are relevant for the purpose of decision of this appeal. The plaintiff respondent no.1 Vikas W.S. P Limited, a company registered 2 under the Companies Act, 1956, through its Managing Director, filed the suit for declaration and injunction and for damages against the State of Rajasthan, Secretary, Cooperative Department, Government of Rajasthan, Registrar, Cooperative Department, Government of Rajasthan and Liquidator, Sri Ganganagar Cooperative Cotton Complex Limited. The plaintiff-respondent alleged that the Liquidator of Sri Ganganagar Cooperative Cotton Complex Limited invited tenders for sale of the properties of Sri Ganganagar Cooperative Cotton Complex Limited which includes land, building, plant and machinery. For that purpose, a public notice was published in the news paper on 2.8.2005. The last date for submitting the offer was 22.8.2005. The plaintiff, in his plaint, pleaded that several persons gave their bids in pursuance of the notice inviting tenders dated 2.8.2005 but some dispute arose and one of the bidders obtained injunction order from the court. However, the plaintiff did not give any particulars of the said litigation in his plaint. According to the plaintiff, during this period of litigation, the defendants issued another notice inviting tender. The plaintiff took part in this second process of sale of the Unit and he submitted his offer on 18.10.2005 and also annexed a draft of Rs.6,00,000/- which was the earnest money. The plaintiff offered his bid of Rs.6,81,50,000/- against the reserve price of Rs. 6,75,00,000/-. As per the plaint allegations, there were only two bidders obviously, one plaintiff and for the other 3 bidder, the plaintiff did not give any particulars nor impleaded that second bidder as party in the suit. However, the plaintiff pleaded that another bidder had no knowledge of the business of cotton and the second bidder had his working place in another State, therefore, that second bidder already shown its unwillingness for purchase of the Unit. According to the plaint allegations, the plaintiff's earnest money of Rs.6,00,000/- was kept by the respondents for eight months because of the simple reason that according to the plaintiff, the plaintiff was the only eligible bidder and there was no other competitor. It is also submitted by the plaintiff that the plaintiff was assured time and again that his bid will be finalized and for that purpose, the process is going on. However, the plaintiff shocked when he received letter dated 11.7.2006 sent by defendant no.4-Liquidator, Sri Ganganagar Cooperative Cotton Complex Limited along with banker's cheque of Rs.6,00,000/-. By this letter, which the plaintiff received on 12.7.21006 and which was dated 11.7.2006, the Liquidator informed the plaintiff that the plaintiff's bid has been rejected and, therefore, the earnest money offered by the plaintiff is being returned to the plaintiff. According to the plaintiff, the plaintiff's bid was rejected without giving an opportunity of hearing to the plaintiff and further without assigning any reasons despite the fact that plaintiff was the only eligible bidder. The plaintiff further submitted that for acceptance or rejection of the 4 offer, the State Government was to appoint a High Level Committed and that committee alone had jurisdiction to accept or reject the bid but according to the plaintiff, no such committee was constituted by the State Government nor any meeting was convened by the committee, therefore, the order of rejection of plaintiff's bid issued by defendant no.4 is unauthorised and without jurisdiction. It is further submitted that the said rejection was for extraneous consideration. The plaintiff though challenged the respondent no.4's communication dated 11.7.2006 on the grounds mentioned above but along with said challenge, the plaintiff submitted that the defendants by keeping Rs.6,00,000/- of the plaintiff which he submitted as earnest money in pursuance of the notice inviting tenders, caused monetary loss to the plaintiff. The plaintiff further pleaded that the plaintiff has right to enforce his right (without disclosing what were those rights), which according to him, accrued to him because of defendants' retention Rs.6,00,000/- for eight months and, therefore, he has a right to initiate legal proceedings and for that civil right, the only civil court has jurisdiction. The plaintiff further claimed that the plaintiff is entitled to claim damages which he suffered because of illegal retention of Rs.6,00,000/- by the defendant for eight months. It will be worthwhile to mention here that the plaintiff though challenged the rejection of plaintiff's offer vide letter dated 11.7.2006 but did not seek any 5 consequential relief of getting the contract in his favour or defendant be directed to consider the bid of plaintiff and transfer the assessts of the said complex in plaintiff's favour and he only sought relief of declaration that it may be declared that by letter of the defendant no.4 dated 11.7.2006, the plaintiff's bid has not been rejected. In the relief paragraph of the plaint, the plaintiff claimed Rs.60,000/- as damaged because of illegal retention of Rs.6,00,000/- by the defendants for 8 months. In addition to above, the plaintiff sought decree for injunction that till the plaintiff's legal rights are determined, the respondents be restrained from selling/transferring the property of Sri Ganganagar Cooperative Cotton Complex Limited. The appellant i.e. M/s Vijay Solvex Limited, who was the another bidder for the properties of Sri Ganganagar Cooperative Cotton Complex Limited, submitted an application under Order 1 Rule 10, C.P.C. before the trial court for being impleaded as party in the suit filed by the plaintiff which was allowed by the trial court vide order dated 1.9.2006 and thereby the appellant became party defendant no.5 in the civil original suit. The plaintiff, after impleading the appellant as party in the suit in pursuance of the trial court's order dated 1.9.2006, submitted an application under Order 6 Rule 17, C.P.C. and sought permission to amend the plaint. By this amendment application, the plaintiff 6 incorporated para 11-A and 11-B in the plaint. The facts pleaded by amendment are very important and relevant for the purpose of deciding this appeal because of the reason that the plaintiff materially altered his case by amending the suit. The plaintiff added new grounds to challenge the action of the defendants, the Government authorities and other defendants. The plaintiff in the amended plaint, contradicting his stand about not constituting of the High Level Committee for the purpose of sale of the properties of the Unit by the State Government, admitted in the amended plaint that the State Government by order dated 5.3.2005, constituted High Level Committee consisting of seven members which includes: (1) the Principal Secretary, Cooperative Department,Govt. of Rajasthan, (2) a Representative of the Finance Department ( not less than cadre of Deputy Secretary), (3) The Registrar, Cooperative Society, Govt. of Raj., (4) the District Collector, Sri Ganganagar, (5) the Managing Director, Rajasthan State Cooperative Bank Ltd., (6) the Representative of RIICO, the Chairman and the Managing Director of Spin fed, Jaipur. After admitting constitution of this committee, the plaintiff took new grounds that the committee was competent to take decision upto 4.9.2005 because of the reason that the committee was constituted for the period upto 4.9.2005. It is also submitted by the plaintiff that the State Government directed the committee to decide the matter of sale of the 7 properties of Sri Ganganagar Cooperative Cotton Complex Limited within a period of six months. The committee failed to take decision in time, therefore, all subsequent decisions are illegal. The plaintiff, who in his initial plaint founded his claim on the basis of the subsequent bid, that is in pursuance of the notice inviting tender after 4.9.2005, changed his stand and submitted that the said committee had no even jurisdiction to invite tenders on 7.9.2005 and challenged his own any right which the plaintiff was claiming on the basis of his bid. The plaintiff contradicting his own original pleading in amended plaint, admitted that High Level Committee was constituted by the State. In the amended plaint there is reference of one meeting dated 31.8.2005 of the said High Level Committee and proceedings of that meeting dated 31.8.2005 also has been challenged by the plaintiff in the amended plaint by saying that in the meeting dated 31.8.2005 the minimum corum was not and, therefore, the meeting was illegal and hence any decision taken in the meeting dated 31.8.2005 is wrong. This plea has been taken by the plaintiff because of the reason that in the meeting dated 31.8.2005, reason for cancellation of earlier proceedings taken for transfer of the property of Sri Ganganagar Cooperative Cotton Complex Limited is recorded. The plaintiff, for the reasons best known to it and probably to support unsuccessful bidder in earlier tender proceedings, submitted that the offer which was given by one M/s Vikas 8 Chemi Gum(India) Ltd. during negotiation of Rs.6,75,00,000/- and another sent by the same company by Fax dated 1.9.2005 of Rs. 8,01,11,111/- is a valid offer till today because of the reason that the respondents did not return the earnest money of Rs.3,00,000/- deposited by the said M/s. Vikas Chemi Gum (India) Ltd. despite the dismissal of the injunction order by the High Court by order dated 29.3.2006.( the order dated 29.3.2006 is order of dismissal of writ petition of M/s Vikas Chemi Gum (India) Ltd. The plaintiff, for the reasons best known to him, in the amended plaint, further pleaded that in view of the above facts, the first right of the said M/s Vikas Chemi Gum (India) Ltd. is there.( despite dismissal of writ petition by the High Court.) The plaintiff further pleaded in the amended plaint that the decision of the said committee cannot be treated to be validly approved decision in accordance with the Govt. order dated 5.3.2005. In the light of above facts, according to the plaintiff, the defendant's effort to sell the properties of Sri Ganganagar Cooperative Cotton Complex Limited is illegal. In addition to above, the plaintiff further pleaded that the defendants have sold the properties of Sri Ganganagar Cooperative Cotton Complex Limited for a consideration of Rs.8,01,00,000/- against the offer of M/s Vikas Chemi Gum (India) Ltd. of Rs. 8,01,11,111/- and thereby defendants caused loss (of Rs.11,111/- only in a transaction of Rs.8,00,00,000/-) to public exchequer. On this ground, the plaintiff 9 pleaded cancellation of decision passed in favour of the appellant- defendant no.5. (Though in preceding para 11-A the plaintiff specifically mentioned that the plaintiff impleaded the defendant no.5 appellant in the suit because of the order passed by the trial court to implead him as party and the plaintiff is not seeking any relief against the defendant no.5 in the suit.) The above facts are the facts which were originally pleaded by the plaintiff and the facts which are subsequently pleaded by the plaintiff. In a case for grant of injunction, conduct of the party seeking injunction is very important and relevant. From the pleadings pleaded by amendment of the original plaint itself, it appears that the plaintiff at one time, by filing the suit in the court of law before the trial court, founded his claim on the basis of second round for sale of the properties of Sri Ganganagar Cooperative Cotton Complex Limited, with specific plea that his offer was of Rs.6,81,50,000/- and further submitted in para 6 of the plaint that the plaintiff alone was eligible candidate for getting the contract in his favour without disclosing the fact of offer of defendant no.5 which was of Rs,8,01,00,000/- and without impleading the defendant no.5 as party in the suit and sought relief of injunction against the sale of the properties of Sri Ganganagar Cooperative Cotton Complex Limited and for which decision was already taken by the respondents before suit was filed. The plaintiff was fully aware that he 10 could not have withdrawn his admissions made in the pleadings as pleaded in the original plaint, did not seek amendment in the other paras of original plaint which were contrary to the stand taken by the plaintiff in the amended plaint. After going through the facts of the case, pleadings of the parties, documents placed on record, the relief claimed by the plaintiff and after examining the plaintiff's right and particularly conduct of the plaintiff, this Court is of the view that it is a grave example of how the process of court can be abused and to what extent the litigants can put forward their pleadings in court of law without any fear of any action against them. Not only this but this Court is constraint to observe that the trial court even did not look into the facts pleaded by the plaintiff nor the documents placed before the court below by the parties and further grave is that the trial court failed to look into the judgment of this Court delivered in S.B.Civil Writ Petition NO.5834/05 dated 29.3.2006 and issued injunction against sale of the properties of more than Rs.8,00,00,000/- in a case where plaintiff's entire claim is money claim that too of Rs.60,000/- in the light of the facts pleaded by the plaintiff in the plaint itself wherein he has admitted that he gave bid of Rs.6,81,50,000/- only whereas the bid of third party (not impleaded in suit) gave bid of Rs.8,01,11,111/- and according to the plaintiff that was valid and is valid till today and bid of defendant no.5 is of more than 11 Rs.8,00,00,000/- against the plaintiff's bid of Rs.6,81,50,000/- and in a case where the sale in favour of the party defendant no.5 became final as the plaintiff specifically pleaded that the plaintiff is not challenging the sale in favour of defendant no.5, still the court has granted injunction against the sale of the property when amount of Rs.8,01,00,000/- has already been deposited by defendant no.5 for purchasing the property in dispute. Therefore, this Court will first deal with the facts of the case in detail coming out from the plaintiff's case only which alone without considering the case of the defendants and which were sufficient for rejection of plaintiff's injunction application being frivolous. The plaintiff in his original plaint, sought relief of injunction against the sale of the properties of Sri Ganganagar Cooperative Cotton Complex Limited on the basis of his alleged right which has not been disclosed in the plaint originally filed or subsequently filed by incorporating para 11-A and 11-B. The plaintiff kept the pleading made in paras 5 and 6 as pleaded originally in the amended plaint also and originally did not plead that who was the second bidder and that second bidder gave bid of Rs.8,01,00,000/-, despite the fact that as per the facts pleaded in paras 5 and 6, the plaintiff gave bid of Rs.6,81,50,000/- only against defendant No.5's bid of Rs.8,01,00,000/- and still the plaintiff submitted that the plaintiff was the only eligible candidate. 12 After suppressing above facts, the plaintiff's plea in para 6 in relation to “other bidder” i.e. defendant no.5 is that that other unit already shown its unwillingness in taking the properties of Sri Ganganagar Cooperative Cotton Complex Limited. Without there being any explanation, the plaintiff's plea in para 11-B admitted that defendant no.5 gave bid of Rs.8,01,00,000/- and the respondent had already, before filing of the suit by the plaintiff, accepted bid of the defendant-appellant. Another serious contradiction remained in the plaint is that in para 9 of the plaint it is mentioned that the State Government never constituted High Level Committee for the purpose of sale of the properties of Sri Ganganagar Cooperative Cotton Complex Limited which is the pleading contrary to the facts admitted in para 11-A specifically. The plaintiff, in rest of the paras of the plaint, submitted that because he gave offer of Rs.6,81,50,000/-, therefore, “right accrued in his favour” and in para 11-A, he pleaded that offer of M/s Vijay Chemi Gum (India) Ltd. given during negotiation and by Fax dated 1.9.2002 of Rs.8,01,11,111/- is valid offer till today. The case of M/s Vikas Chemi Gum(India) Ltd. was pladed by the plaintiff despite the fact that the writ petition of Vikas Chemi Gum (India) Ltd. has been dismissed by the High Court for this very bid on 29.3.2006, more than three months before plaintiff's filing original suit before the court below and six months before filing amended plaint. The plaintiff even pleaded self-contradictory facts and 13 grounds in para 11-A and 11-B of the plaint. In para 11-A, the plaintiff categorically stated that the defendant no.5 has been impleaded as party in the suit by the plaintiff only because of the reason that the court has passed the order to implead defendant no.5 as party in the suit and further categorically stated that the plaintiff is not seeking any relief against defendant no.5. Contradicting this, the plaintiff in para 11-B specifically pleaded that sale of the properties of Sri Ganganagar Cooperative Cotton Complex Limited for consideration of Rs.8,01,00,000/- in favour of defendant no.5 deserves to be cancelled being illegal and against the public interest and being against the interest of M/s Vikas Chemi Gum (India) Ltd who was only eligible for the purchase of the property of Sri Ganganagar Cooperative Cotton Complex Limited. Further contradiction in the pleading is that the plaintiff's entire case is founded upon his offer given in pursuance of the second notice inviting tender which was issued in the month of September, 2005 and claimed his right on the basis of his said alleged valid offer but in para 11-A and 11-B, destroying his own case, pleaded that the proceedings taken in pursuance of the first notice inviting tender dated 2.8.2005 are valid (wherein the plaintiff did not participate) and further the Committee could have no jurisdiction to invite fresh tenders (which was submitted by the plaintiff and his bid under this second notice inviting tender is foundation of claim of 14 plaintiff). The plaintiff not only pleaded the fact and the grounds in the plaint against the settled principles of law that there may be alternate pleas in certain circumstances but cannot be self-destructive pleadings. The plaintiff even pleaded against the decision of the High Court given in M/s Vikas Chemi Gum (India) Ltd. in the writ petition which was dismissed by the High Court on 29.3.2006 and submitted that the offer of M/s Vikas Chemi Gum( India ) Ltd. is valid and is in force till today. The plaintiff claimed relief in the suit that the plaintiff's bid has not been cancelled by the competent authority and, therefore, it may be declared that the plaintiff's bid still has not been rejected by the respondent despite his pleading ,that offer of M/s Vikas Chemi Gum (India) Ltd. is valid offer and offer of M/s Vikas Chemi Gum (India) Ltd. is of more than Rupees eight crorers against the plaintiff's bid of Rupees six crores plus. Copy of the order passed by the trial court allowing the amendment application dated 21.9.2006 also has been provided by the learned counsel for the appellant for perusal of this Court. It appears from the order dated 21.9.2006 that the plaintiff, in his application, for amendment of the plaint also stated that plaintiff is not seeking any relief against the newly added defendant no.5 in the suit and after stating so, the plaintiff submitted that since defendant no.5 has been impleaded as party, therefore, he is seeking amendment in the plaint by 15 incorporating para 11-A and 11-B as referred above. The order dated 21.9.2006 has not been challenged by any party and has become final but the fact is required to be taken note of is that in such situation, how the plaintiff could have justified earlier proceedings taken in pursuance of earlier notice inviting tender dated 2.8.2005 and had right to plead the case of M/s Vikas Chemi Gum (India) Ltd and that too against the judgment of the High Court delivered in the case of M/s Vikas Chemi Gum (India ) Ltd. in the writ petition decided on 29.3.2006. The contradictory and self-destructive pleadings are not all what has been mentioned above, but more shocking is that the plaintiff submitted written synopsis before the trial court which is dated 20.9.2006. The facts mentioned in the written synopsis are shocking and more shocking is that such a fact has been accepted by the trial court while deciding injunction application of the plaintiff. In written synopsis, in para 7, the plaintiff submitted that the plaintiff-company gave bid of Rs,8,01,11,111/- on 1.9.2005 and that offer was given by the plaintiff during valid period of High Level Committee and that offer has not been rejected by defendant no.4 nor the security amount deposited for this offer has been returned to the plaintiff. The plaintiff further very specifically and categorically in para 7 of the written synopsis stated that in view of the above facts, the plaintiff has first right to purchase the properties of Sri Ganganagar Cooperative Cotton Complex 16 Limited for a consideration of Rs.8,01,11,111/- and further submitted that in view of this fact, the interim order which was passed by the trial court may be confirmed. The fact is against the plaintiff's own entire case pleaded in the plaint, as the plaintiff's case in the suit is that his offer was of Rs.6,81,50,000/- and it was never the case of the plaintiff that his bid was of Rupees eight crorers and odd at any point of time, either in first bid or in second bid. Not only this but the plaintiff's specific case in the plaint is that he participated only in second notice inviting tender and he gave bid of Rs.6,81,50,000/- only and deposited security money of Rs.6,00,000/- along with tender form on 18.10.2005. The plaintiff's case in detail and the trial court's impugned order have been considered by this Court in detail without the help of the replies filed by the defendant-appellant and other respondents. As stated above, the initial burden was upon the plaintiff to prove his case by pleading the facts and by placing on record the material evidence before the court of law. If facts disclosed by the plaintiff applicant seeking equitable relief are sufficient for the purpose of denying the relief to the plaintiff, the weakness of the defendant (which is not in this case) cannot be a ground for equitable relief in favour of the applicant. How these broad facts have not been looked into by the court below, is strange. It appears that the court below even did not apply its mind to the facts mentioned in the plaintiff's plaint itself which, 17 therefore, are mentioned above. The court below failed to look into the grounds on the basis of which the plaintiff sought injunction against the sale of the properties of Rs.8,00,00,000/- by auction through High Level Committee constituted by the State. The plaintiff in his entire plaint, originally and thereafter in amended plaint, nowhere stated that he has not encashed the banker's cheque of Rs.6,00,000/-, his earnest money given with his offer in tender which has been sent to it by defendant no.4-the Liquidator of Sri Ganganagar