LODHA, J. -
(1.)THE above three matters arise out of suit No. 10 of 1967 pending in the Court of District Judge, Merta. Miscellaneous Appeal No 13 of 1968 has been filed by defendants No. 1 and 3 to 6, Indian Air Lines Corporation and its officers, and Appeal No. 15 of 1968 has been filed by defendant No. 8 M/s, Dalam Chand Bajranglal, and both are directed against the same order of the learned District Judge, Merta dated 8-2-1968 whereby the learned District Judge, granted a temporary injunction in favour of the plaintiff M/s. Ramniwas Laduram restraining the defendants Nos. 1 to 7 i. e. the Indian Air Lines Corporation and its officers from giving delivery of the tyres and tubes in question to defendant No. 8 and also restraining the defendant No 8 from taking delivery of the same, till the decision of the suit. THE Civil Revision No. 156 of 1968 has been filed by the defendant No. 1, Indian Air Lines Corporation only against the order of the learned District Judge, Merta dated 8-2-1968 whereby he granted permission to the plaintiff under sec. 20 (b), Civil Procedure Code. Since common questions have been argued in all these three matter?, we consider it convenient to dispose them of together by a single judgment.
(2.)BRIEFLY stated, the plaintiff's case is that certain rejected tyres and tubes of Dakota, main wheel and tail wheel belonging to the Indian Air Lines Corporation defendant No. 1 (which for the sake of brevity will be hereinafter called the Corporation) had to be disposed of and therefore the Corporation issued a notice inviting tenders for these articles to 19 persons out of whom 7 persons, among whom defendant No. 8 is one, submitted their tenders. No notice was, however, issued to the plaintiff, who, having come to know of the notice submitted its tender personally in the office of the Controller of Stores of the Corporation on 2-12-1967. The tenders were opened on 5-12-1967, but the plaintiff's tender was not opened at all. The tender of defendant No. 8 being the highest out of the rest 7 tenders received by the Corporation was accepted and on 7-12-1967 an order was also issued by the Corporation for delivery of the articles to the defendant No. 8, who had paid the entire cost calculated according to the rates tendered by it the same day. The plaintiff's case is that the action of the Corporation in not opening its tender and accepting the tender of the defendant No. 8 was against the rules relating to such sales, as according to the plaintiff, the notice inviting tenders should have been published in news papers but no such publication had been made. The plaintiff has further alleged that he had tendered higher rates than the defendant No. 8 and if its tender had been opened, it would have been accepted in the ordinary course. It was also alleged that the defendant No. 8 is a bogus firm. On these allegations it was prayed that a decree "restraining the defendants Nos. 1 to 7 from giving delivery of the tyres and tubes regarding which tender of defendant No. 8 has been accepted by the defendants No. 1 to 7, till the tender of the plaintiff has been opened and considered and being the highest tender is accepted" be granted. Along with the plaint, the plaintiff also filed an application under O. 39, RR 1 and 2 C. P. C. supported by an affidavit for issue of a temporary injunction restraining the defendants Nos. 1 to 7 from giving delivery of the said goods to defendant No. 8. The learned District Judge granted an exparte injunction against the defendants on this application on 19-12-1967. This exparte injunction was confirmed by the learned District Judge on 8-2-1968 after hearing both the parties. Hence the Corporation as well as the defendant No. 8 have filed separate appeals from this order.
The Corporation also raised an objection in the written statement filed by it that the court of District Judge, Merta had no jurisdiction to try the suit. In order to meet the objection regarding jurisdiction the plaintiff made application on 27-1-1968 under sec. 20 (b), Civil Procedure Code praying that since one of the defendants viz. defendant No. 8 was residing within the jurisdiction of the Court, leave may be granted under sec. 20 (b), Civil Procedure Code against the other defendants also, who did not reside within the jurisdiction of that Court. This application was opposed by the defendants Nos. 1 to 7. The learned District Judge however, by his order dated 8-2-1968 allowed this application and granted leave to the plaintiff under sec. 20 (b), Civil Procedure Code, as prayed. Against this order granting leave u/sec. 20 (b)Civil Procedure Code, the Corporation has filed a revision which has been registered as D. B. Civil Revision Petition No. 156 of 1968 and has been connected with the miscellaneous appeals.
We propose to dispose of this revision first. It it contended by Mr. Agar-wal, learned counsel for the Corporation, that the lower court acted arbitrarily in granting leave under sec. 20 (b), Civil Procedure Code. He has argued that no part of the cause of action arose within the jurisdiction of the Court and no cause of action had been disclosed against the defendant No. 8. His contention is that at any rate the principal defendant in the case is the Corporation which admittedly does not carry on any business within the jurisdiction of the Merta Court, and the suit has been brought at Merta simply in order to harass the Corporation and put it to heavy expense. It has also been contended that there is a clause in the notice inviting tenders to the effect that "all disputes arising out of this tender will be subject to the jurisdiction of Delhi Courts" and thus, according to Mr. Agarwal, the suit was not triable by the Court of District Judge, Merta. We have given due consideration to the submissions made on behalf of the Corporation. Grant of leave under sec. 20 (b) Civil Procedure Code was a matter of discretion with the trial court. In the present case there are more than one defendant. The defendant No. 8 admittedly resides within the jurisdiction of the Court of District Judge, Merta, and, therefore sec. 20 (b), Civil Procedure Code can be pressed into service by the plaintiff. In these circumstances it cannot be said that the trial court acted without jurisdiction or acted illegally and with material irregularity in exercise of its jurisdiction in granting leave under sec. 20 (b) Civil Procedure Code. The trial court has not yet finally decided the question of jurisdiction particularly from the point of view of the clause contained in the notice inviting tenders nor it has applied its mind to the question whether the defendant No. 8 is neither a necessary nor proper party in the case. These questions are yet to be decided. In these circumstances we do not feel inclined to interfere with the trial court's order under sec. 20 (b) Civil Procedure Code.
Another prayer contained in the revision petition is that if this Court comes to the conclusion that the Merta Court as well as the Delhi Court have jurisdiction to try the suit, looking to the circumstances of the case the suit may be transferred to Delhi Court. This prayer has been objected to on behalf of the plaintiff on the ground that the revision application is directed against the order granting leave under sec. 20 (b) Civil Procedure Code and the prayer for transfer cannot be considered in this revision petition. It is correct that no separate application for transfer of the case under sec. 23, Civil Procedure Code, supported by an affidavit has been filed. After the learned counsel for the petitioner had closed his arguments, and while the counsel for the plaintiff was making his submissions, an affidavit of one Shri Om Prakash Gupta was sought to be put in by the Corporation in support of the prayer under sec. 23, Civil Procedure Code. We, however, do not consider it proper to accept this affidavit at a belated stage specially in absence of any application under sec. 23, Civil Procedure Code. The prayer for transfer of the case under sec. 23, Civil Procedure Code, is therefore disallowed on the simple ground that no separate application in this respect has been made. It will, however, be open to the Corporation to make such an application according to law, as and when so advised. Thus we do not see any force in the revision application and the same is hereby dismissed.
This brings us to the appeals directed against the order of the learned District Judge, granting temporary injunction to last till the decision of the suit.
Mr. Hastimal Parikh, learned counsel for the defendant No. 8 has submitted that the plaintiff has failed to make out a prima facie case. He has also urged that the balance of convenience lay in refusing such an injunction, and further, that his client would be put to irreparable loss if the injunction issued by the trial court was maintained. It is the admitted position that the defendant No. 8 has paid up the full price of the goods sold to him in pursuance of the rates tendered by him. It has nowhere been prayed by the plaintiff that the sale of the tyres and tubes in question in favour of the defendant No. 8 be set aside. It has also not been shown how the sale of the goods in question in favour of the defendant No. 8 is null and void or in the alternative what right the plaintiff has to get that sale cancelled or set aside ? In para No. 16 of the plaint it has been stated that the action of the Corporation in accepting the tender of the defendant No. 8 is against the rules relating to such sales because when the material to be sold is worth more than Rs. 1000/- tender notice has got to be published in the news paper. We called upon the learned counsel for the plaintiff to show us if there are any rules framed by the Corporation, or by the Central Government which would make the sale in the present case in favour of the defendant No. 8 null and void in the eye of law, but the learned counsel frankly conceded that he was not able to lay his hands on any such rules framed on the subject. Thus the position is that there are no rules bearing on the question of disposal of such property by the Corporation, and, therefore, it cannot be said that the sale in question is liable to be set aside on account of breach of any statutory rules. Learned counsel for the plaintiff in the alternative argued that the Corporation is a statutory body created under the Air Corporation Act No. XXVII of 1953 entrusted with Government property and is therefore bound to act in a manner so as to eliminate all-chances of favouritism,nepotism, and corruption in the discharge of its duties. In this connection he has also invited our attention to sec. 9 of the Air Corporation Act, which lays down that in carrying out any of the duties vested in it by this Act, each of the Corporations shall act so far as may be on business principles. In support of his argument he has placed reliance on Guruswamy vs. State of Mysore (l ). This Supreme Court case relied upon by the learned counsel, in our opinion, has no application to facts and circumstances of the case in hand. In that case a liquor contract was knocked down in an auction in favour of 'a', who was the highest bidder. 'b' who was present at the auction did not bid at the time of auction but met the Excise Commissioner and offered Rs. 5000/- in excess of A's bid. B's offer was accepted, and A's bid was cancelled. In there circumstances their Lordships where pleased to hold that the action of the Excise Authorities in accepting B's offer and cancelling A's bid was clearly in contravention of the provisions of Mysore Excise Act, 1901 and the rules made under it. It was in this context that their Lordships observed that "there is a policy and a purpose behind the Act and the Rules, and that the fetters imposed by legislation cannot be brushed aside at the pleasure of either Government or its officers, and that the rules bind the State and the subject alike". As already stated above in the present case no rules on the subject putting any fetters on the Corporation in the matter of disposal of rejected tyres and tubes etc. have been placed and, therefore, the observations made by their Lordships in Guruswamy's case can have no application to the present case. Besides, learned counsel for the plaintiff also failed to show as to what right the plaintiff has against the defendant No. 8. Admittedly there is no privity of contract between the plaintiff and defendant No. 8. In these circumstances the plaintiff cannot rely upon either breach of any statutory rules nor can he rely upon breach of any contractual rights.
Faced with this situation learned counsel tried to make out a case of fraud and argued that all the defendants had committed a fraud and fraud vitiates all transactions. We have carefully looked into the allegations in the plaint and there is nothing therein to show that the defendant No 8 has committed any fraud. No particulars of fraud even against the Corporation have been pleaded as they should have been according to the provisions of the Civil Procedure Code.
It was also argued by the learned counsel for the plaintiff that the Corporation had committed a patent wrong in not issuing notice inviting tenders to his client and at any rate the Corporation was bound to open the tender submitted by the plaintiff. We have not been shown any provision of law under which it was incumbent on the Corporation to give a public notice for inviting tenders. Besides, it is mentioned in the notice itself that the Corporation reserves the right to accept or reject any or all tenders, and also to withdraw any or all the tyres and tubes from any particular station without assigning any reason therefor. Apart from that, the Corporation has also placed on record some material to show that the Corporation had not been happy in some transactions which it had entered into with the plaintiff in the past, and, therefore, it had decided that no tenders be invited from the plaintiff in future. We do not think it necessary for the purpose of disposing of these appeals to go into the question whether this allegation made by the Corpora-tion is correct ? All that we need say at the present stage is that no prima facie case has been made out by the plaintiff against the defendant No. 8. We, however, wish to make it clear that these observations made by us are only for the purpose of disposing of the matter pertaining to injunction and will not be deemed to prejudice the rights of any of the parties with respect to the main suit.
Apart from any special law we have also examined whether any contractual right has accrued in favour of the plaintiff so as to warrant an issue of a temporary injunction against the defendant No. 8 restraining it to take the delivery of the goods purchased by it from the Corporation. But the learned counsel for the plaintiff failed to point out to us any contractual right in favour of the plaintiff. All that he urged was that the Corporation committed an error in not opening the plaintiff's tender and if the action of the Corporation is declared illegal, the defendant No. 8 would ultimately be adversely affected. We, however, fail to see how the plaintiff would be able to get any relief against the defendant No. 8 unless it was able to show any cause of action against the latter? In this view of the matter we are inclined to hold that the learned District Judge was in error in coming to the conclusion that the plaintiff had made out a prima facie case. All that the learned District Judge has stated in his order is that there are some serious questions of fact and law which will require thorough consideration at the trial. He has, however, failed to mention what those serious questions are? In our opinion, this was not at all a correct approach to the matter. Merely raising serious questions in a case is not enough. It is the duty of the plaintiff to show that the questions raised by him are well founded and there are fair chances of their being decided in his favour. We are not satisfied that the plaintiff has succeeded in making out a prima facie case.
Then we have to consider the question of irreparable loss and balance of convenience. The defendant No. 8 has paid the full price of the goods sold to it, and the Corporation has already issued a delivery order. If the goods are not delivered to it, it would certainly be deprived of both the goods as well as interest on the money which it has paid as price. Thus, in our opinion, the defendant No. 8 is likely to suffer more by maintaining the injunction issued against it by the trial court than what the plaintiff would by vacating it. Apart from that, the plaintiff has failed to show how he would be put to irreparable loss if a temporary injunction is not issued in his favour.
Mr. Hastimal, learned counsel for the defendant No. 8 has contended that the suit pertains to moveable property and no injunction can be granted under sec. 41 read with secs. 10 and 14 of the Specific Relief Act No. 17 of 1963. Sec. 41 provides inter alia that an injunction cannot be granted to prevent the breach of a contract the performance of which would not be specifically enforced. Similarly sec. 14 (1 ). inter alia, provides that a contract for the non-performance of which compensation in money is an adequate relief cannot be specifically enforced. The explanation to sec. 10 lays down that unless and until the contrary is proved the Court shall presume that the breach of a contract to transfer movable property can be adequately relieved by compensation except in the cases where the property is not an ordinary article of commerce, or is of special value or interest to the plaintiff or consists of goods which are not easily obtainable in the market, or where the property is held by the defendant as an agent or trustee of the plaintiff. The present case, it is contended by Mr. Hastimal, is not covered by any of the exceptions mentioned in clause (2) of the explanation contained in sec. 10, In other words the contention on behalf of the defendant No. 8 is that granting every thing in favour of the plaintiff the utmost that the plaintiff can get is compensation in money, but it cannot claim delivery of goods by way of specific performance and consequently cannot ask for an injunction in its favour. The only way in which this argument was met by the learned counsel for the plaintiff was that the tyres and tubes in question are not easily obtainable in the market. It may be observed that the tyres and tubes in question are ordinary articles of commerce. They are neither curios nor of any special value or interest. It is common knowledge that the second-hand tyres and tubes and other! miscellaneous' goods rejected by the Air Service Companies can easily be had in the market. We therefore, find ourselves unable to accept the contention raised on behalf of the plaintiff in this respect. There in thus no escape from the conclusion that no specific performance can be decreed in respect of the goods in question and consequently no injunction can be granted in respect of them. Thus the plaintiff would not be put to any irreparable loss if the goods are allowed to be delivered by the Corporation to the defendant No. 8. , as the plaintiff can be compensated by money. We are, therefore, of opinion that considerations of balance of convenience and irreparable loss are also against the plaintiff.
The lower court while dealing with the question of balance of convenience and irreparable loss has observed that if the order of injunction is vacated the tyres and tubes would be sold and this relief would become infructuous and that would cause irreparable loss to the plaintiff. These observations arc not supported by any reasons and are in our opinion, in disregard of the provisions of the Specific Relief Act, which we have referred to above. The lower court has not taken into consideration the heavy loss which would be caused to the defendant No. 8 by withholding the delivery of the tyres and tubes in question to it when it has already paid full price. It has also not taken into consideration the fact that the loss if any caused to the plaintiff by delivery of goods to the defendant No. 8 can be adequately compensated in money. It is significant that nothing has been stated in the plaint as to how the plaintiff is entitled to get a perpetual injunction in this case. On the other hand the plaintiff has alleged in para No. 19 of the plaint that he would have been greatly benefited if his tender had been opened and would have earned a profit of about Rs. 10000/ -. The finding of the lower court therefore on the question of balance of convenience as well as irreparable loss stands vitiated and must be set aside.
(3.)MR. Agarwal, learned counsel for the Corporation, argued in support of the appeal filed by the Corporation that the lower court had no jurisdiction to try the suit and the finding given by it while issuing the impugned order of injunction that it has jurisdiction to entertain and try the suit must be set aside, and the plaint must be ordered to be returned for presentation to the proper Court under O. VII, r. 10, Civil Procedure Code. He has rested his argument on one of the conditions contained in the notice inviting tenders, which is that 'all disputes arising out of this tender would be subject to the jurisdiction of Delhi Courts" and in support of his contention he has referred to Libra Mining Works vs. Baldota Bros. (2) Tam Bahadur Thakur & Co. vs. Devidayal (Sales) Ltd (3), and S. Manuel Raj & Co. vs. J. Manilal & Co. (4 ). On the other hand the learned Additional Advocate General MR. Vyas appearing for the plaintiff has relied upon M/s Lakhinarayan Ramniwas vs. L. T. S. P. A. D. N. S. in Telesta (5), and M/s Patel Bros vs. M/s Vadilal Kashi Das Ltd. , (6 ). We, however, do not think it necessary to decide this point in these appeals, firstly because the lower court itself has not given a firm finding on this point and has dealt with this question only incidentally while dealing with the application for grant of temporary injunction. At more than one place it has observed that it does not think it necessary to decide this point at this stage, though un-guardely it has observed at one place that the Court has jurisdiction to entertain the suit and try it. Learned counsel for the plaintiff frankly conceded that this observation should be taken only as tentative and the question of jurisdiction will have to be decided when the lower court proceeds to deal with the issues arising out of the pleadings of the parties. In view of the findings arrived at by us on the question of issue of temporary injunction the order dated 8-2-1968 passed by the learned District Judge, Merta is liable to be set aside and since we are setting aside that order we do not consider it necessary to go into the question of jurisdiction of the trial court to entertain and try the suit at this stage in these appeals, and leave this question to be decided by the lower court according to law.
We, therefore, allow Miscellaneous Appeals Nos. 13 and 15 of 1968, and set aside the order of the District Judge, Merta dated 8-2-1968 granting temporary injunction in favour of the plaintiff. The revision petition No. 156 of 1968, filed by the Corporation is however dismissed. We leave the parties to bear their own costs of both the appeals as well as revision. .