IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 1ST JANUARY 2009 / 11TH POUSHA 1930 AS.No. 379 of 1997() -------------------- OS.36/1990 of SUB COURT, CHERTHALA .................... APPELLANT(S)/3RD DEFENDANT: -------------- AUTOKAST LIMITED, SHERTALLAY, REPRESENTED BY ITS GENERAL MANAGER. BY ADV. SRI.M.PATHROSE MATTHAI (SR.) RESPONDENT(S)/PLAINTIFF AND DEFENDANT 1 AND 2: --------------- 1. V.J. GEORGE, PROPRIETOR, JEROME ENGINEERING COMPANY, MAMANGALAM, EDAPPALLY SOUTH VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. 2. T.K. NARENDRA, S/O. J.B. KHANTH, J.B. KHANTH & SONS, KARIMPATTA ROAD, ERNAKULAM. 3. THE BRANCH MANAGER, M/S. BATLIBOI & COMPANY LTD. M.G. ROAD, ERNAKULAM, COCHIN - 16. ADVS. SRI.P.JACOB VARGHESE (SR.) FOR R1 SRI.K.N.SIVASANKARAN SRI.T.B.THANKAPPAN FOR SRI.V.V.ASOKAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 01/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J ----------------------- A.S.No. 379 OF 1997 ------------------------------------------ Dated this the 1st day of January, 2009 JUDGMENT This is an appeal preferred against the judgment and decree of the Subordinate Judge, Cherthala in O.S.No. 36/90. The suit is one for a permanent prohibitory injunction and in the alternative for the realisation of amount. It is the case of the plaintiff that it has entered into an agreement with the 1st defendant for execution of the work at Ernakulam on 16.7.1987. The case of the plaintiff is that due to some dispute between the parties the work was not completed within the stipulated period and it was running on a heavy loss. The tools and machineries and other equipments of the plaintiff were in the work site at Cherthala which is completely under the control and custody of the defendants. The defendants are now preventing the plaintiff from entering into the work site and they are never allowing to remove the tools. It is further contended that other than item Nos. 1, 32, 34, 35, 36, 57, 61 and 68 are left with the control and custody of the 3rd defendant. It has also claimed in the alternative to pay the value of the articles if it is not able to return the articles. A.S. No. 379/1997 -2- 2. The 1st defendant filed a written statement contending that the plaintiff did not bring any articles to the work site. The 1st defendant is a full fledged mechanical and electrical contractor and therefore all the materials belonged to the 1st defendant. 3. The 2nd defendant would content that the suit is not maintainable against it and there is no contract between the plaintiff and the 2nd defendant. 4. The 3rd defendant filed a written statement contending that it has entrusted the 2nd defendant to do the work who in turn might have given the work to the 1st defendant or the plaintiff. According to it the tools and machineries were kept illegally inside the premises and it is not liable for any damages to the plaintiff. It is further contended that since there is a dispute with regard to the ownership of the tools and machineries, the 3rd defendant cannot give those articles to the plaintiff unless he proves that it belongs to him. The 3rd defendant has also filed an additional written statement stating that it is the duty of the contractor to protect the articles by appointing a watchman or by other means. 5. In the trial court Exts. A1 to A22 and C1 to C3 were marked. PWs. 1 and 2 were examined. A.S. No. 379/1997 -3- 6. The trial court after considering the entire materials granted a decree allowing the plaintiff to take back item Nos. 2, 3, 5 to 31, 33, 37 to 60 and 62 to 67 of the plaint schedule and further held that if 3rd defendant is not able to show the articles to the plaintiff for taking back them the 3rd defendant is liable to pay cost of the articles prevailing in the year 1987 and value of which is mentioned in Ext. A22. It is against that decision the 3rd defendant has come up in appeal. 7. The point that arises for determination in the appeal is whether the trial court was right in granting the order of injunction and the right to the plaintiff to take back the articles or in the alternative directing the 3rd defendant to pay the cost of the articles as shown in the appendix. The facts of the case would reveal that the 3rd defendant has entrusted the 2nd defendant with some fabrication work. The 2nd defendant in turn had entered into a contract with the 1st defendant who in turn had sub contracted to the plaintiff and that is how the relationship between the parties exist. Admittedly the work is carried out for the 3rd defendant who is the owner of the premises. It is contended that there is some dispute between the plaintiff and the 1st defendant. The plaintiff A.S. No. 379/1997 -4- would contend that all the articles, machineries and tools are installed by him and on account of some developments beyond its control, the work cannot be completed in time and it ran in to very heavy loss. But when it attempted to remove the machineries installed by him it was prevented by the 1st defendant and other defendants and that had given rise to the suit. The 1st defendant would contend that it is a full fledged contractor having all the equipments and the equipments available in the premises belongs to it and the plaintiff has no manner of right or possession over the same. The 2nd defendant would plead innocence except for the fact that it is a contractor under the 3rd defendant. The 3rd defendant would contend that the articles and materials are in its premises and there is a dispute between the plaintiff and the 1st defendant and unless the plaintiff is able to establish that it is the owner of the articles or machineries it cannot given it back. So the trial court first attempted to answer the question regarding the ownership and possession of the materials of the articles. It has been considered by the trial court in para 12 of the judgment. The court below found that PW1 has deposed that some tools and machineries were taken on rent and some other tools and machineries were A.S. No. 379/1997 -5- purchased by it. Ext. A1 is the quotation submitted by the plaintiff to the 2nd defendant. It is clearly stated in condition 5 of the quotation that all the machineries, tools etc. will be provided by the plaintiff. So as per the terms of the contract it is the paramount duty of the plaintiff to provide tools and machineries at the work site. Then the court below extracted a certificate issued by the 1st defendant namely Ext. A2. From the said letter it is clear that the plaintiff was authorised to take the necessary tools, machineries and articles to the work site and he was allowed to take back the same after the completion of the work. After perusing the letter, the court arrived at a decision that Ext. A2 can be interpreted only in such a manner that it was the plaintiff who brought the articles to the company premises. Thereafter the court below also proceeded to rely upon Exts. A7 to A13 which indicated that the plaintiff was permitted to take the articles mentioned in the plaint schedule inside the company and those articles belonged to the plaintiff. Ext. A14 to A17 also establish the factum that those articles were taken inside the premises by the plaintiff. After consideration of the entire materials held that Ext. A1, A2, A7 to A21 would show that the plaintiff is the owner of the tools and machineries mentioned in the A.S. No. 379/1997 -6- plaint. So from this discussions, the court held about the ownership of the articles, machineries and materials. At the instance of the plaintiff, a Commissioner was taken out and he filed a report stating that except item No. 4, all other articles were seen inside the company premises. So the court came to the conclusion that except item No. 4, the plaintiff is the owner of all other machineries and articles and that it has brought those articles to the compnay premises and it was available in the company premises on the date of the inspection by the Commissioner. 8. Thereafter the court again found that by virtue of an order of the Munsiff, Cherthala, item Nos. 1, 32, 34, 35, 36, 57, 61 and 68 were returned to the plaintiff on furnishing security. Subsequently another Commissioner inspect the property. When this Commissioner went to the site, he was only able to see 8 items there and the rest of the items were not there. It is also seen that by an order of the court on furnishing security, certain items had been taken possession of by the plaintiff. When 2nd Commissioner visits the property, except 8 items, all other items were not seen in the premises. There cannot be any dispute that the premises belongs to the 3rd defendant. The 3rd defendant has also taken a A.S. No. 379/1997 -7- definite stand that unless plaintiff is able to establish that his right over the machinery, it will not be handed over. When a litigation was pending and the matters had reached a complicated stage, if the 3rd defendant wanted itself to get absolved of all its responsibility and liability it should have submitted before the court that some arrangements be made for taking away the articles and it may be handed over to the person who ever succeeds ultimately in the litigation. But it was not the conduct of the 3rd defendant. The 3rd defendant by filing an additional written statement found fault with the plaintiff for not appointing a watchman to take care of all those articles. It has to be remembered that the 3rd defendant is the owner in custody of the premises and it was for it to see that things were intact especially when with on record a litigation is pending before a competent civil court. So it is not easy for the 3rd defendant to wash off its hands as if that it has nothing to do with the contract or sub contract. It has to be remembered that it was in its premises the articles were placed and it was conscious and aware of the implications of litigation and when the trial court ordered it to return it or give the value, one cannot find fault with the same for the reason that it is also responsible. If it has any A.S. No. 379/1997 -8- other legal remedy against any other defendants it is for it to work it out when the articles had been lost from or misplaced from its premises or damage. Therefore I do not find any ground to interfere with the decision rendered by the trial court in this case. Therefore I confirm the judgment of the trial court and dismiss the appeal but without cost. M.N. KRISHNAN,JUDGE vkm