Venkatachaliah, C.J.I - (1.) -Civil Appeal No. 1581 of 1993 arises out of and is directed against the appellate Judgment of the Division Bench dated 29th January, 1992 of the High Court of Delhi dismissing RFS [OS] No. 36/91 preferred by the present appellants and affirming the judgment and decree dated 28th May, 1991 of the learned single Judge dismissing the appellant's Original Suit No.39/90. There was a further order by the Division Bench which declined to entertain fresh and further arguments in the appeal which were sought by the present appellants by means of C.M. No. 3209/92. That Order is assailed in Civil Appeal No. 1582 of 1993. The appeals raise a short and interesting question as to the scope of Restitutionary jurisdiction of the Courts.
(2.) On 27th March, 1989, the appellants instituted Civil Suit No. 74/1989 in the Court of Senior Sub-Judge, Chandigarh. Simultaneously, appellants sought an injunction u under Rules 1 and 2, order 39, C.P.C. The averments in the plaint were that the plaintiff appellant "M/s. Balsara Hygiene Products Ltd. - as the latter's clearing and forwarding agents for the respondent's products, such as, tooth-pasts, tooth-powder, tooth-brushes, mosquito-repellents, cleaning powders, toilet fresheners etc. under terms of an agreement said to be executed on 1st April, 1985 stipulating a commission at the rate of 1.5% up to a turnover of Rs.2 crores and 1% in respect of turnover in excess thereof. Appellants further pleaded that there were, allegedly, certain renewals, revisions and updating of these arrangements from time to time whereunder large sums by way of commission fell due and remained unpaid. It was also alleged that the purported termination of the arrangements by the respondent under letter dated 15th February, 1989 was invalid. On these and other allegations the appellants sought a declaration of the appellants' lien to the extent; of Rs.15,80,861.85 over the goods of the respondent lying with the appellants; for a further declaration that the purported termination was illegal and that the respondent may be restrained from interfering in the appellant's alleged right to dispose of the stocks/. The learned Sub-Judge, 1st Class, Chandigarh, before whom the suit was instituted and a temporary injunction in terms of the above reliefs sought was persuaded to grant an ex parte injunction in terms following: "...the defendants are restrained from interfering in the disposal of the stock in question otherwise than in due course of law till further orders. In the meanwhile notices of the suit as well as application u/O.39, Rules 1 and 2, C.P.C. be issued to the defendant in filing of PF for 8-5-89. Compliance of Order 39, Rule 3, C.P.C. be also made by the plaintiff."
(3.) Respondents moved to have this exparte interim order vacated. Upon hearing both the parties, the learned Sub-Judge, 1st Class, Chandigarh, by his order dated 29th April, 1989 made the interim order absolute. In the meanwhile, the appellants had sold away bulk of the stocks under the authority of the ex parte interim order dated 27-3-1989. Though the goods worth Rs. 32.4 lakhs were admittedly sold away, Shri Prem Nath Trehen, the husband of Smt. Kavita Trehan who brought the suit, claimed that he had re-covered only Rs. 23 lakhs by way of sale proceeds. The learned Sub-Judge, 1st Class, Chandigarh, directed furnishment of a 'bond' in the sum of Rs. 16 lakhs by the appellants. The suit was, at the instance of the respondent, subsequently transferred to the original side of the Delhi High Court by an order of the Supreme Court by its order dated 20th November, 1989. It was admitted by the appellants- this is borne out by the statement of Sri Prem Nath Trehan who was examined under Rule 2, Order 10, C.P.C. that appellants had in their possession respondents's goods to the extent of about Rs. 36 lakhs-that under cover of the interim injunction granted in the suit, the appellants had sold goods to the extent of Rs.32.40 lakhs. Except a sum of Rs. 7 lakhs paid to the respondent under directions of the Court, the balance was retained by the appellants. The suit came to be dismissed on the undisputed ground that it was hit by sub-section (2) of Section 69 of the Indian Partnership Act, 1932. Indeed, the appellants did not dispute the liability of the suit for such dismissal on the ground of non-registration of the partnership.;