: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.359 2008 WITH CIVIL APPLICATION NO.422 OF 2008 IN APPEAL FROM ORDER NO.359 OF 2008 M/s.YG-1 Industries India Pvt. Ltd. ..Appellants. Vs. M/s.Unique Star Alliance Tools Mfg. Pvt. Ltd. ..Respondents. Mr.D.S.Paranjpe i/b.Mr.H.H.Nagi for the Appellants. Mr.Sandesh D. Patil for the Respondents. CORAM : S.J. VAZIFDAR, J. CORAM : S.J. VAZIFDAR, J. CORAM : S.J. VAZIFDAR, J. DATED : 24TH APRIL, 2008 DATED : 24TH APRIL, 2008 DATED : 24TH APRIL, 2008 P.C. : P.C. : P.C. : Admit. Heard finally. 2. Admittedly, the Respondent/Plaintiff does not have a charge in respect of the eight machines. The impugned order has been passed in an application merely for injunction which could not have been done. It would have been another matter had it been an application under Order XXXVIII Rule 5. 3. The learned counsel appearing on behalf of the Appellant states that in the event of his being permitted to shift the machinery to its factory at : 2 : Thane, the Appellant will not deal with the same to the prejudice of the Respondent. 4. In the circumstances, pending the hearing and final disposal of the suit, the Appellant shall be permitted to shift the eight machines to its Thane factory, to be specified on an affidavit before the trial Court. The affidavit shall also contain an undertaking by the Appellant not to dispose of, alienate, encumber, part with possession of or create any third party right, title or interest in respect of the said machines. 5. Further, the trial Court shall appoint a Commissioner for the purpose of inspecting the machines and make a report as to its condition, if necessary, with the assistance of a photographer. The costs of the Commissioner shall be paid equally in the first instance but shall be subject to any orders in the suit. The parties shall be at liberty to remain present when the Commissioner inspects the machines, which shall be done at the present site. The shifting of the machinery shall be done thereafter. : 3 : 6. Any repairs to the machinery shall be carried out only after giving 72 hours notice to the Plaintiff’s Advocate in the trial Court. 7. It is however clarified that any application under Order XXXVIII Rule 5 shall be dealt with on its own merits without being influenced by this order. It would be open to the trial Court in such an application to pass any orders it deems fit and the trial Court shall not be restricted even regarding shifting or not shifting the machines. 8. The Appeal from Order stands disposed of accordingly. 9. The Civil Application therefore becomes infructuous and the same also stands disposed of accordingly.