S.K.Mookherjee, J. - (1.) The present appeal is directed against an order dated 27th September, 1994, passed by Sri P. C. Barman, learned Assistant District Judge, Raiganj, Uttar Dinajpur, in O.C. suit No. 8 of 1994, whereby an application for mandatory injunction filed by the plaintiff was allowed on terms. The defendant Bank is the appellant before this Court.
(2.) Facts of the case, relevant for disposal of the present appeal may be summarised as follows : The appellant Bank instituted a suit being Mortgage suit No. 56 of 1993 in the Court on the learned Assistant District Judge at Raiganj, inter alia, for a decree for realisation of a sum of Rs. 1,49,903.76 for sale of stock in trade, plant and machinery, which were hypothecated and pledged with the Bank by way of security and which included 100 metric tonnes of Aluminium ingots. While the said suit was pending, the Bank caused a public auction for sale of the aforesaid 100 metric tonnes of aluminium ingots and in the auction held on 11th January, 1994, the bids received indicated that the highest rate per metric tonne that could be offered was Rs. 46,300/-. Even though the purchasers were made parties in the suit for enforcing the sale, none of them turned up to make the final purchase by making payment of the balance amount after deposit of earnest money and ultimately the earnest moneys were returned by the Bank upon cancellation of the sale. The aforesaid factual position, which remain substantially uncontradicted, had been brought to the notice of the Court before which the respondent in the present appeal filed a suit being O.C. suit No. 8 of 1994, inter alia, praying for a decree for specific performance, damages and delivery of balance quantity of 100 metric tonnes of Aluminium ingots, which were lying at the Godown of the respondent, under lock and key of the appellant, and on behalf of the plaintiff/respondent in the said suit an application was filed, inter alia, with a prayer for mandatory injunction, directing the appellant to deliver to the respondent, the balance quantity of 100 metric tonnes of Aluminium ingots as mentioned above. The said application was objected to on behalf of the appellant and by the impugned order, as stated above, the Trial Court allowed the prayer of the plaintiff/respondent by directing the release of the Aluminium ingots against payment of invoice value of Rs. 51,000/- per metric tonne @ 1 metric tonne per day, on every consecutive working day, with effect from 1st of October, 1994, till all the ingots had been delivered as also allowed the prayer for injunction, restraining the added purchasers from taking delivery and possession of the said ingots or any part thereof.
(3.) We have heard the appeal and before us a number of contentions had been raised, including the propriety of the order of mandatory injunction and the maintainability of the second suit by the plaintiff/respondent to this appeal. Decisions had also been cited in support of the contention that a relief by way of mandatory injunction ought not to be granted ordinarily and particularly when it results in granting the entire relief in the suit. On behalf of the appellant it was emphasised that by permitting the respondent to take delivery of 1 metric tonne per day, the learned Judge exceeded his jurisdiction inasmuch as no such prayer even had been made on behalf of the plaintiff/applicant, who is respondent before us. To counter the last submission, as noted above, on behalf of the respondent, reference was made to the terms of the revocable revolving letter of credit issued by the Bank to the supplier of said ingots and further that factually the business of the plaintiff/respondent had almost been lying closed for dearth or non-availability of raw-materials in the form of such ingots and if the supply of ingots could be obtained then through production of finished goods, it could be possible for the respondent/plaintiff to generate funds for liquidation of the legitimate dues of the appellant/defendant Bank. On behalf of the plaintiff/respondent it was further emphasised that since the Bank wanted to sell out the ingots through public auction, there could be no prejudice caused to the Bank by the impugned direction of releasing the said ingots upon payment at higher rates by the plaintiff/respondent.;