K.M.Yusuf, J. - (1.) This is an application under section 115 of the Code of Civil Procedure where the judgment dated 9th January, 1991 passed by the learned District Judge, North 24-Parganas, in Misc. Appeal No. 102 of 1990 was challenged by the defendants/petitioners to set aside the order of injunction granted by the learned District Judge in favour of the plaintiff. The learned Munsif, 3rd Court, Sealdah, by his order dated 11th September, 1990 in T. S. No. 283 of 1990 refused to grant any order of injunction which was reversed by the learned District Judge. The petitioners filed a title suit against the defendants for permanent injunction restraining the defendant No. 1 from cancelling the agreement between the plaintiff and defendant No. 1 and a permanent injunction upon defendants Nos. 3 and 4 not to start any work at the site of work or demolish or do anything in respect of the building made by the plaintiff ; also a prayer was made restraining the defendant Nos. 1 and 2 to take away any material from the site of work without observing the letter of intent as well as without physical verification of the works done already by the plaintiff.
(2.) The fact of the case is that the petitioner No. 1 entered into an agreement with M/s. WEBEL Electronics . Communication System Limited, a Government undertaking, for construction of a Factory-cum-Administrative Complex at Salt Lake City. The petitioner No. 1 in turn engaged the plaintiff/, opposite party No. 1 as the sub-contractor to execute some of the works which were on terms and conditions in the agreement with WEBEL. One of the terms important for the purpose of this case is "For all work to be done the materials to be used have got to be approved by the authorised representative of our client (WEBEL)/Consultants. Defective and sub-standard work shall have to be rectified/replaced at your (Nu-Built's) cost to the satisfaction of client/Consultants' representative.' In the course of the work the Nu-Built executed some work not satisfactory and to the satisfaction of WEBEL/Consultants and the plaintiff was asked to redo which it was contractually obliged to do but refused to do and closed the work incomplete on or about 10th June, 1990 and is now wrongfully claiming payments which in terms of the agreement the plaintiff does not deserve. In the circumstances as WEBEL/Consultants rejected some floor work and the petitioners by letter dated 24th August, 1990 asked the Nu-Built to redo the work but by letter dated 31st August, 1990 the plaintiff refused to do the same and wrongfully filed application under section 145 of Cr. P. C. in the court of Executive Magistrate at Barackpore against the new contractors i.e. opposite-parties Nos. 2 and 3. The plaintiff which is the opposite-party No. 1 in breach of the contract after abandoning the work have been taking all misconceived steps and stalled the progress of the work causing irreparable loss and prejudice to the petitioners, M/s. Mackintosh Bum Ltd. The petitioners stated that the Nu-Built was obliged to rectify or redo the work which was not approved by WEBEL or their Consultants, namely, Ghose, Bose and Associates, an eminent Consultant of West Bengal.
(3.) The Affidavit-in-Opposition filed by opposite party No. 1, inter alia, states that Nu-Built is a sub-contractor for construction of the factory building and other ancillary works for WEBEL at Salt Lake for about Rs. 50 lakhs. Eighty per cent of the work has been completed in spite of actue non-co-operation and non-payment of the bills by the petitioner No. 1. Troubles were started by the petitioner No. 1 with motive of wrongful gain through their agent M/s. Jay Guru Enterprise, opposite-party No. 2. False allegation was made that the progress of the work was lagging far behind the anticipated schedule and threat to get the balance work done at their own risk and cost. It was decided to take joint measurement on 9th June, 1990 but if could not materialise because of the non-co-operative attitude of the petitioner No. 1 though it was alleged that there were no one at the site on 9th June, 1990. The fact is that the men of the opposite-party No. 1 were present at 2.30 P.M. at the site. Thereafter opposite-party No. 1 got a letter dated 22nd June, 1990 that the work at the factory premises was treated by them as closed with effect from 10th June, 1990 and adviced the opposite-party No. 2 to take up the balance of work. On 11th July, 1990 and 17th July, 1990 the petitioner No. 1 forcibly took away all the steel materials Horn the custody of the petitioner No. 1 from the work sites when complaint was lodged with the Bidhan Nagar Police Station (East). Though the closer of the work was done on 10th June, 1990 but the petitioner No. 1 allowed the opposite-party No. 1 to clean the mosaic work and complete the work upto 2nd out. But surprisingly by letter dated 24th August, 1990 the petitioner No. 1 stated that partially polished portion of mosaic has not been accepted by the petitioners and we were asked to dismantle the work though the mosaic work was done under the specification and the direct supervision of the petitioners and there was no question of non-acceptance of the mosaic work or dismantling the same. The petitioners with the help of opposite-party No. 2 attempted to demolish and dismantle the construction without taking joint measurement and making payment of outstanding dues in terms of contract and therefore the opposite-party No. 1 was compelled to file T. S. No. 283 of 1990 in the court of 3rd Munsif at Sealdah and thereafter the Misc. Appeal No. 102 of 1990 before the District Judge at Barasat for injunction. By order dated 15th September, 1990 the learned District Judge passed an interim order of injunction in favour of the opposite-party No. 1 against which the petitioners moved the High Court in C.O. No. 3316 of 1990 when Mr. Justice A. K. Nandi on 5th December, 1990 directed the learned District Judge to hear out the petition of temporary injunction within a week. The matter was heard by the lower appellate court and by order dated 9th January, 1991 the interim order was made absolute restraining the petitioners from demolishing or dismantling in any way the Factory-cum-Administrative Complex. Against the said order the petitioners have come again to the revisional jurisdiction of the High Court.;