: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.328 OF 1998 WITH CROSS OBJECTION (ST.) NO.14464 OF 1998 M/s.Jolly Steel Pvt.Ltd. & Anr. ....Appellants V/s. M/s.Gupta Steel Industries & Ors. ....Respondents Mr.Girish Godbole with Ms.S. John and Mr.Pratik Majumdar i/b M.P. Savla & Co. for the Appellants in F.A. No.328 of 1998 and for the Respondents in Cross Objection (St.) No.14464 of 1998. Mr.C.J. Sawant, Senior Counsel i/b Mr.Vijay Patil for Respondent Nos.1 to 3 in F.A.No.328 of 1998 and for the Appellants in Cross Objection (St.) No.14464 of 1998. CORAM : B.H. MARLAPALLE & S.J. VAZIFDAR, JJ. DATED : 16TH APRIL, 2009. ORAL JUDGMENT (PER B.H. MARLAPALLE, J.) : 1. This appeal has been filed by two different companies registered under the Companies Act, 1956 and they were running two separate re-rolling mills on Ahmednagar road in Pune district. By a common agreement dated 9.4.1980, the Appellants handed over their respective factories to Respondent No.1 which is also a company incorporated under the Companies Act, 1956. Respondent Nos.2 and 3 are the directors of Respondent No.1. After about seven years from signing : 2 : of the common agreement dated 9.4.1980, the Appellants approached the Court of Civil Judge Senior Division at Pune by filing Special Civil Suit Nos.446 of 1987 and 447 of 1987 for the recovery of the plant and machinery of the re-rolling mills as well as the compensation amount. Clause 3 pertains to consideration. The Respondent was to deposit a sum of Rs.2,50,000/- without interest and pay compensation at Rs.100 per M.T. of goods manufactured on the first 250 M.Ts. per month and Rs.50 per M.T. in excess of 250 M.Ts. per month. Clause 3 also stipulated the minimum amount payable per month for each of the three years and the mode of adjustment of the said deposit of Rs.2,50,000/-. The suits were clubbed and tried together. The suits were partly decreed on 1.1.1990 and the trial Court was pleased to award the monetary compensation in favour of the Appellants. The Respondents therefore approached this Court in First Appeal Nos.1 of 1990 and 2 of 1990. Consent terms came to be filed at Exhibit-27 in both the Appeals on 9.4.1991 and the Appeals came be decided in terms of the said consent terms. 2. As per the consent terms, the present Appellants were required to deposit an amount of Rs.15.00 lacs with the trial Court on or before 31.5.1991, Rs.10,40,000/- on or before 29.6.1991 and : 3 : the last instalment of Rs.20.00 lacs on or before 31.12.1991. On deposit of the first instalment of Rs.15.00 lacs, the possession of the plant and machinery was to be handed over to the Appellants from 1.6.1991. The Respondents were allowed to run the factories as the agents of the Court Receiver without any security or royalty and in case the Respondents failed to hand over the possession on or before 31.3.1992 to the Appellants, they were liable to pay a sum of Rs.5000/- per day with effect from 1.4.1992 till the date of actual possession of the plant and machinery to the present Appellants. It appears that on 29.5.1991, the Appellants deposited four different cheques with the trial Court and the first cheque of Rs.3.00 lacs was encashed, whereas the remaining two cheques of Rs.5.00 lacs each and the fourth cheque of Rs.2.00 lacs was returned by the bank with a request to represent the same when funds would be available. It is the case of the Appellants that the return of the cheques was brought to their notice some time on or before 27.6.1991 by the Nazar of the trial Court and therefore, they submitted an application on or before 29.6.1991 praying for extension of time to deposit the balance amount of Rs.12.00 lacs and along with the application placed before the Court three demand drafts in the aggregate sum of Rs.12.00 lacs. This application was rejected after hearing the : 4 : parties by the trial Court on 16.7.1991. Consequently, the Appellants approached this Court in Civil Application No.3588 of 1991 for extension of time. In the meanwhile, the demand drafts were not returned by the trial Court to the Appellants and they were never encashed. While Civil Application No.3588 of 1991 was pending, the Respondents filed Contempt Petition registered as C.P. No.81 of 1993 in Civil Application No.1680 of 1992 before this Court on the ground that on 23.9.1993, the main gate of the factories of the Appellants came to be locked by them and consequently the Respondents could not run the factories. In Civil Application No.1689 of 1992 filed by the Respondent, this Court had by its order dated 27.3.1992 directed to maintain status-quo and these Respondents remained in occupation of the plant and machinery and there was no hurdle to run the factories as the agents of the Court Receiver. 3. Civil Application No.3588 of 1991 came to be decided by this Court on 18.7.1996 and on the same day, Civil Application No.1414 of 1993 as well as Contempt Petition No.81 of 1993 also came to be decided. The Respondents approached the Apex Court against the order dated 18.7.1996 passed in Civil Application No.3588 of 1991 by filing Civil Appeals No.12995/19800 of 1996. All these Appeals came to be : 5 : disposed off by the Supreme Court on 23.9.1996. The Supreme Court gave the following directions to the trial Court :- a). To conduct an enquiry whether the present Respondents (Appellants before the Supreme Court) were prevented by the acts of the present Appellants (Respondents before the Supreme Court) to remain in possession of and work the factories. b). In the event of the findings being recorded that the Respondents were prevented by the acts of the Appellants for working out the factories,the Respondents were not liable to pay any damages whatsoever. c). On the other hand, if it would be found that the Respondents had worked out the factories in view of the fact that the High Court had granted the order of status-quo, they shall be liable to pay an amount of Rs.2500/- per day to the Appellants. d). The trial Court to verify whether the amount of Rs.12.00 lacs was subsisting till the order of the status-quo passed by the High Court on 18.7.1996 and whether the amount stood deposited in any interest earning security within a period of six months from : 6 : the date of receipt of the order. e). In case the amount was deposited to the credit of the suits and it had not been invested in the interest earning security, then the Appellants were directed to pay the interest at the commercial rate from the date of deposit till the judgment of the High Court i.e. 18.7.1996. f). In case the Respondents were found to have withdrawn the said amount of Rs.12.00 lacs, need to pay the interest did not arise. g). The deposit of Rs.33,40,000/- was to be disbursed after enquiry into the mesne-profit conducted by the trial Court and any amount due to either of the parties could be worked out accordingly by way of adjustment. 4. Miscellaneous Application No.1 of 1997 came to be filed by the Appellants in Special Civil Suit Nos.446 of 1987 and 447 of 1997 before the trial Court and mainly for the execution of the order passed by the Supreme Court on 23.9.1996 and as recorded herein above. In the said application, the Appellants prayed for recovery of Rs.80,95,000/- by way of compensation from the Respondents, for a declaration that they were : 7 : not liable to pay the interest at the commercial rate on the amount of Rs.12.00 lacs and for other consequential reliefs. It would be pertinent to note at this stage itself that the Appellants were put in possession of the plant and machinery oh 6.9.1996 and they have deposited an amount of Rs.12.00 lacs on 25.9.1996. The amount of Rs.33,40,000/- with accrued interest was allowed to be withdrawn by the Respondents on conditions and admittedly the Respondents have withdrawn an amount of Rs.71,21,268/- by furnishing the bank guarantee. Miscellaneous Application No.1 of 1997 came to be decided by the trial Court on 21.3.1998 and it was partly allowed as under :- a). The present Respondents to pay the mesne-profit at the rate of Rs.2500/- per day from 18.7.1996 to 6.9.1996. b). The Respondents to receive an amount of Rs.45,40,000/- deposited by the Appellants towards the suit account No.446 of 1987 with accrued interest thereon after adjustment of the payment of mesne-profit to the Appellants. c). The Respondents to pay the proportionate costs to the Appellants. : 8 : d). The decree of mesne-profit be drawn up accordingly on payment of requisite court stamp duty by the Appellants. . This Appeal challenges the said order dated 21.3.1998 passed in Miscellaneous Application No.1 of 1997 by the trial Court. 5. On the maintainability of this Appeal, Mr.Godbole has invited out attention to the scheme of Sections 2(2), 2(12) and Order 20 Rule 12 (Bombay Amendment) of the Code of Civil Procedure and he has also relied upon the decisions in the case of Chittoor Subbanna v. Kudappa Subbanna & Ors., AIR 1965 SC 1325 and Lucy Kochuvareed v. P. Mariappa Gounder & Ors., (1979) 2 SCC 150. This appeal was admitted on 3.4.1998 and the issue of maintainability of the appeal was not left open. Mr.Sawant, the learned Senior Counsel appearing with Mr.Patil for the Respondents has not seriously challenged and rightly so, the issue of maintainability of this appeal and hence we proceed to decide the same on merits. 6. The scope of our enquiry to the challenge of the impugned order has to be strictly in terms of the order of the Supreme Court and therefore, we have to : 9 : examine whether the order under challenge in the appeal meets the enquiry as directed by the Supreme Court. The application was opposed by the Respondents by filing the reply. A rejoinder as well as sur-rejoinder were also filed before the trial Court. In support of the application, Kasturilal Jolly, the Managing Director of both the companies of the Appellants had stepped into the witness box. He was cross-examined on behalf of the Respondents. To oppose the application, the Respondents had examined Bansidhar Agarwal. 7. At the threshold, Mr.Godbole submitted that the impugned order is required to be quashed and set-aside by restoring Miscellaneous Application No.1 of 1997 to the file of the trial Court for a fresh enquiry for two reasons viz. (a) the issues framed by the trial Court were not in consonance with he directions of the Supreme Court and (b) the evidence that was required to be adduced cannot be placed before the Appellate Court. . We have perused the contents of Miscellaneous : 10 : Application No.1 of 1997 as well as the rejoinder therein. The Respondents had submitted their reply as well as sur-rejoinder and therefore, the pleadings of the parties were set out before the trial Court. On the main issue of execution of the order passed by the Supreme Court, if the issues framed by the trial Court are not in consonance with the order passed by the Supreme Court, we, as an Appellate Court are required to consider the same and that failure by itself cannot a reason to remand the application for a de-novo enquiry. The oral evidence of the parties is before us and even otherwise, the issues framed by the trial Court cannot be said to be in conflict with or contrary to the directions of the Supreme Court. We, therefore, do not find any merit in the prayer to restore and remand Miscellaneous Application No.1 of 1997 for a fresh enquiry by the trial Court. 8. Admittedly on the basis of the order of status-quo granted by this Court, the Respondents remained in possession of the plant and machinery even after 31.3.1992 i.e. from 1.4.1992. The possession of the plant and machinery has been received by the Appellants, as noted earlier on 6.9.1996. It was submitted by Mr.Godbole that when the Respondents were in lawful possession of both the factories from 1.4.1992 till 6.9.1996, the Appellants would be : 11 : entitled for compensation at the rate of Rs.2500/- per day for the said period and the trial Court was not justified in granting the compensation only for a period from 18.7.1996 to 6.9.1996. He also submitted that the Respondents failed to bring on record any evidence to prove that they were prevented from operating the factories for any reason attributable to the Appellants during the period from 1.4.1992 to 6.9.1996. Mr.Patil, the learned counsel for the Respondents, on the other hand submitted that the Appellants had locked the factory premises on 20.3.1993 and he submits that it was physically impossible for them to run the factories or to even take out the manufactured goods. He also submitted that as the main gate was locked, movement of the trucks either for bringing the raw material or despatching the finished goods was not possible. He also denied the allegations that on account of disconnection of the electric supply, the factories could not run even prior to 20.3.1993. On the issue of interest on Rs.12.00 lacs, Mr.Godbole submitted that the demand drafts for the said sums were deposited with the trial Court along with the application dated 29.6.1991 and despite the application being rejected, they were not returned and hence the Appellants were not liable to pay any interest. He submitted that it was for the Court : 12 : either to take steps to reinvest the amount or to return the demand drafts to the Appellants. 9. Mr.Kasturilal Jolly in his cross-examination stated that both the factories were handed over to Respondent No.1 on monthly compensation of Rs.30,000/- by way of minimum charges or 100 per M.T. of the finished goods. He also stated that the Respondents are in possession as the agents of the Court Receiver from 1.4.1991 to 6.9.1996. In his cross-examination, he admitted that on 20.3.1993, the main gate of the factory was locked by the Appellants. He however did not remember which of his representatives had locked the main gate, though he admitted that one Ramsingh was in his employment at the relevant time. He was not aware that the police had directed to Ramsingh to hand over the key of the lock put up on the main gate of the factory and he denied that he had asked Ramsingh not to hand over the key to Respondent No.2. He also denied that as the gate was locked, the Respondents could not take the material inside and despatch the material out of the factory premises. Respondent No.2 in his examination-in-chief stated before the trial Court that on 20.3.1993, the manager of Jolly Steel viz. Ramsingh closed the main gate of the factory with chain and lock. He requested him to open the lock and give the key, but Ramsingh replied : 13 : that the Managing Director had gone to Bombay and on consultation with him, he would open the main gate. On the next day, the factory gate was not opened and therefore, he went to the police station and lodged the complaint. He further stated as under :- . "As the main gate was locked, my business was stand still. Except this main gate there was no other entrance to my factory. Due to the said reason I could not export or take the raw material or finished good to the factory. Due to the said situation I could not run my business, workers were sitting idle. Then I took the adjacent plot and started the trading business. It is not correct to say that here was no electricity hence I could not run my business. Electric supply was disconnected. There was no reason to get restored the electric supply as the main gate was closed I could not run my business." . He also admitted in his cross-examination that he was supposed to hand over the possession of the factory to the Appellants by 31.3.1992. He also admitted that the last electric bill was unpaid and the M.S.E.B. had filed the case against him for recovery of the electricity charges. He also stated that he filed Contempt Petition No.81 of 1993 before this Court as the main gate was locked. : 14 : 10. Thus admittedly, despite the fact that the Appellants were supposed to receive the possession of the plant and machinery on 31.3.1992 from the Respondents (through the Court Receiver), the Respondents remained in possession on account of the status-quo order from 1.4.1992 onwards. The main factory gate was locked at the instance of the Appellants on 20.3.1993. There is no reason brought on record which was attributable to the Appellants and which reasons came in the way of the Respondents from running both the plants from 1.4.1992 to 19.3.1993 and therefore, for this period, the Respondents must pay the compensation at the rate of Rs.2500/- per day as directed by the Supreme Court. The trial Court in the impugned order in this regard recorded a specific finding which reads as under :- . ".........The circumstances came on record that on 20.3.1993 the factory premises were locked by the Applicants which is clear from the evidence of Applicant at para no.9 and one of the employee of the applicant had locked the premises and the factory was not in use of the non-applicants. The evidence in para no.6 of the applicant shows that there is wicket gate by the side of the main gate the wicket gate can be utilized by the pedestrian for taking small : 15 : quantity of material and by two wheelers. The truck load material cannot be taken inside or outside if the main gate is closed. ........" . The initial burden was on the Respondents but once the Appellants admitted the factory main gate was closed by them from 20.3.1993, the burden thereafter shifted on them and they failed to discharge the same. 11. We agree with the said finding but the trial Court was in gross error in denying the compensation to the Appellants from 1.4.1992 to 19.3.1993. We do not agree with the trial Court that the Appellants were entitled for the compensation for the period from 18.7.1996 to 6.9.1996. The trial Court held that on 18.7.1996, this Court had passed a final order and therefore, the Respondents remained in unauthorized possession of the plant and machinery till 6.9.1996. This reasoning is not in consonance with the directions of the Supreme Court. In our opinion, the order of the Supreme Court for the payment of compensation was only in respect of the period when the Respondents remained in possession of the plant and machinery but could not operate the same for the reasons attributable to the Appellants. When the factory was closed from 20.3.1993 and no material movement was possible, the factory operation came to a : 16 : stand still and for the causes attributable to the Appellants and therefore, the Appellants were not entitled for any compensation from 20.3.1993 till they received possession of the plant and machinery on 6.9.1996. 12. The Supreme Court directed the trial court to conduct an enquiry whether the Respondent was prevented by the acts of the Appellant to remain in possession and work out the factory. Mr.Godbole however submitted that neither the trial court nor this court is entitled to conduct an enquiry afresh on the question whether the Respondent was prevented by the acts of the Appellant to remain in possession and work out the factory. He based the submission on an order of a Division Bench of this court dated 18.7.1996 in Contempt Petition No.81 of 1993 in Civil Application No.1686 of 1992 in First Appeal No.1 of 1990. The Respondent had filed the contempt petition against the Appellant alleging violation of an order of status quo dated 27.3.1992 passed by the Division Bench of this court in the said Civil Application. The Division Bench dismissed the contempt petition with the following observations relied upon by Mr.Godbole :- "It has been pointed out in the reply that : 17 : the defendant has abandoned the factory by leaving the premises open and unguarded. The defendant was conducting the factory but failed to pay the Maharashtra Electricity Board the charges for electricity consumption which came to Rs.9,16,525.20. Therefore electricity board discontinued the electric supply. Therefore the defendant abandoned the factory and the plaintiffs were required to put the locks for guarding the same which is their property. Hence this petition is rejected." 13. Mr.Godbole submitted that the above observations concluded the question as to whether the Appellant had prevented the Respondent from working out the factory in the Appellant’s favour. 14. The submission is not well founded. Firstly the Supreme Court had before it the entire record including the order of the Division Bench dismissing the contempt petition. Despite that the Supreme Court directed the trial court to conduct of the said enquiry. The trial court was therefore bound to do so. The trial Court did so after considering the entire evidence including the further oral evidence of : 18 : the parties. The enquiry was not limited to the material before the Division Bench which dismissed the Contempt Petition. 15. Further the Division Bench was considering a contempt petition. The scope of enquiry before the Division Bench was therefore limited and entirely different from the scope of enquiry in the present proceedings. We in any event do not construe the order of the Division Bench as having held that the Appellant did not obstruct the working out of the factory by the Respondent. It merely held that the conduct of the Appellant did not warrant taking any action for contempt of court. In fact the order properly construed indicates that the Division Bench recognized the fact that the Appellant had put the locks albeit was not concerned with the enquiry presently for guarding the factory. The Division Bench in the contempt petition before us. 16. Even assuming that the order of the Division Bench dismissing the contempt petition held that the Appellant took possession due to the Respondents having abandoned the premises it would not make any difference in the present proceedings. The Court Receiver was in possession of the premises. If according to the Appellant the property was required : 19 : to be protected as a result of it having been allegedly abandoned by the Respondents they ought to have applied to the Court Receiver to take the necessary action to protect the premises and the goods lying therein. Mr.Godbole stated that the Appellant had done so. Even then it would not take the Appellant’s case further. If the Court Receiver did not act on the Appellant application the Appellant was not entitled to take any steps which would affect the premises on its own. The Appellant ought to have applied to the court for orders directing the Court Receiver to do so. The Appellant was not entitled to interfere with the possession of the Court Receiver. 17. Now coming to the next issue of payment of interest on the amount of Rs.12.00 lacs. Mr.Godbole has rightly brought to our notice the report of the record keeper in the trial Court. We have perused the said report dated 29.11.1994 and it is clear from the same that along with the application dated 29.6.1999, praying for extension of time, the Appellants had placed before the trial Court three demand drafts with the following details and drawn on the Central Bank of India : Draft No. Date Amount : 20 : 010672 27.6.1991 Rs.2,00,000=00 010670 27.6.1991 Rs.5,00,000=00 010671 27.6.1991 Rs.5,00,000=00 . The report states that the demand drafts were searched and located in a bundle of papers packed and obviously as they could not be encashed within the period of six