ARUN MADAN, J. - (1.) THIS revision petition has been preferred against the order dated 9.4.1996 passed by learned ADJ No. 3. Jaipur City, Jaipur in CMA No. 29/95 against the order dated 2.3.1995 passed by Civil Judge (Junior Division) Jaipur City (East) Jaipur in Case No. 304/94 by which the said court dismissed the appeal of the petitioner.
(2.) THE facts which are relevant for deciding the controversy between the parties briefly stated are that the petitioner is a retired Lt. Colonel from the armed forces and after his retirement in the year 1982, he established a Tannery in the name and style of Excusite Enterprizes in Faridabad (Haryana) as a partnership concern. In August 1992, the petitioner was introduced to respondent No. 1 who is NRI. The latter had approached the petitioner for technical and administrative help to re -start the sick industry namely: Rajasthan State Tannery Tonk Pvt. Ltd. at Tonk. He also asked the petitioner to join his company as above. The petitioner accepted this offer and was allocated 35% shares on 6.9.1992 and he was also made one of the Directors of the said company. There was one more Director namely Major Vijay Bhatnagar since expired, his widow Mrs. Asha Bhatnagar respondent No. 2 has been made Director without any shares. The Rajasthan State Tannery Pvt. Ltd. Tonk which was a State Government Enterprise and was established in 1973, was never run properly. Its paid up capital and reserves, etc. were Rs. 1,79,00,000/ -, while upto 1985 it had suffered a total loss of Rs. 3,19,000/ - and it was closed in 1985. The State Govt. tried to hand over this industry to a private sector, but it could not be given. In 1992, respondent No. 1 offered to take this industry from the State Govt. on the following basis: 1. IDBI DUES -Rs. 88 lacs to be paid TTPL in 14 half yearly installments, with interest @ 15% from the start up of production with one year moratorium. 2. Bank of Baroda -Rs. 75 lacs to be paid as above. 3. Other Creditors -Other creditors including Government of Rajasthan and labour etc. Rs. 30.15 lacs. 4. In pursuance of the aforestated proposal, the State Govt. issued a letter of intent through its Department of Public Enterprize in August, 1992 containing the following conditions: (A) Government agrees to transfer the entire share holding of Rajasthan State Tanneries Ltd. of the face value of Rs. 194.16 lacs at a token consideration of Rs. 1000/ - in favour your newly formed Company M/s. Tonk Tanneries Pvt. Ltd. (TTPL) on their terms and conditions are set out below: (a) an agreement to transfer shall be entered between the State Government, Rajasthan State Tanneries Ltd. and M/s. Tonk Tanneries Pvt. Ltd. for the implementation within a period of 90 days of the date of agreement. (b) a security of Rs. 5 lacs (inclusive of Rs. 50,000/ - already received the earnest money) shall be given by M/s. Tonk Tanneries Pvt. Ltd. to the State Government. The security shall be liable to be forfeited in case of non compliance of the agreement within the stipulated time. Time could be extended on reasonable grounds by the State Government on the request of M/s. Tonk Tanneries Pvt. Ltd. after enhancing the security to a reasonable limit as decided by the Government. (c) M/s. Tonk Tanneries Pvt. Ltd, will settle outstanding liabilities of IDBI to their entire satisfaction, government shall, however, assist for getting the relief from IDBI as far as possible. Government shall not be responsible for any controversy in finalisation of the agreement between IDBI and M/s. Tonk Tanneries Pvt. Ltd. The Government shall not be responsible for any outstanding liability towards IDBI. (d) M/s. Tonk Tanneries Pvt. Ltd. will settle outstanding liabilities of Bank of Baroda to their entire satisfaction as stipulated in para (c) above. (e) M/s. Tonk Tanneries Pvt. Ltd. will pay Rs. 30.15 lacs to the State Government against current liabilities. Rs. 10.00 lacs will be paid by the Tonk Tanneries Pvt. Ltd. at the time of agreement and remaining Rs. 20.15 lacs in a period of six months of the starting of production. Payment of Rs. 10.15 lacs will be secured by way of Bank Guarantee or an irrevocable letter of Credit from a scheduled Bank in stipulated period.
(3.) After executing the aforesaid agreement, the State Govt. vide its letter No. F. 70(3) LT/CSE/85/Vol. II/3456 dated 19.9.1992 permitted the respondent No. 1 to enter the industry and take initial action to start the Industry. The company has paid an amount of Rs. 20,15,000/ -to the State Govt. till date and an amount of Rs. 10 lacs is still to be paid, and only after this amount is paid, the transfer of company will be complete. The petitioner started re -construction of this factory in September 1992 with his own skill and ability. Thereafter, since it was running in loss and has been lying closed since then, it has been contended that the petitioner put in hard labour in building of the factory and its machinery which had to be repaired so as to bring factory to the proper shape or re -production. As a result of his efforts, the factory which was closed earlier started its re -production again. The petitioner had invested a sum of Rs. 27,05,641/ - in this factory. He also arranged a limit of Rs. 2.5 Crores from Canara Bank by way of Credit Facility as well as Rs. 1 Crore by way of loan from the said Bank. The petitioner gave his personal surety alongwith respondent No. 1 but, despite his efforts the said respondent neither made any investment nor put any labour on the said factory. Since, the factory started reproduction, behavior of respondent No. 1 changed and as a result of his malafide intentions, he wanted to dispose of this factory for a huge amount by involving some foreign buyers so that he could repay the amount of loan for Rs. 10 lacs to the Rajasthan State Tannery Ltd. He also made a plan to drive out the petitioner from the factory in connivance with respondent No. 2 with a view to become its owner, in June, 1994 the respondent No. 1 told the petitioner to return his shares so that he may arrange to pay all the money due from him to the respective parties. It may be mentioned in this connection that this Tannery situated at Tonk is one of the best Tanneries of Asia. As a result of non -payment of Rs. 27,05,641/ -, the factory stopped working. The petitioner had also given some machines to this factory on lease from his factory at Faridabad for which, a lease agreement was executed on 10.1.1994. This machinery belong to his wife and was given on lease to the factory situated at Tonk due to the efforts of the petitioner. The rent of the machinery had not been paid to her till date which is about Rs. 10,07,880/ -. Thereafter, the petitioner came to know that respondents are negotiating to sell this factory to some other persons surreptitiously. The petitioner has further contended that apprehending the risk at the instance of respondents, he filed a civil suit before the learned Civil Judge (Junior Division) and Judicial Magistrate, Jaipur (East) Jaipur alongwith an application for the relief of ad -interim injunction under Order 39 Rules 1 and 2 CPC with a view to restrain the respondents from causing any hindrance to the petitioner going to the factory and doing his job. He further sought the relief of restraining the respondents against from transferring the said factory/company or its shares to any other person.;