- (1.) This appeal is the glaring example of misuse and abuse of process of law at the instance of the appellant-plaintiff, whereby the appellant has not only taken the High Court and the trial court for a ride but has also misled the courts by suppressing the material facts for obtaining the ex-parte ad-interim orders against the respondent Nos. 2 and 3, tentamounting to playing fraud on Court.
(2.) The present appeal filed under Or. XLIII Rule 1(r) of C.P.C. arises out of the order dated 11.4.2012, passed by the Additional District Judge No. 9, Jaipur Metropolitan City, Jaipur,(hereinafter referred to as the trial court) in Civil Misc. Application No. 1/2011, whereby the trial court has rejected the said application of the appellant-plaintiff seeking temporary injunction against the respondents-defendants with costs of Rs. 1100/-. This Court had called for the record of the case from the trial court and also the record of the writ petition being No. 11970/2011, filed by the appellant earlier, which have been perused by the Court.
(3.) At the out-set, it is necessary to mention the chronological dates and events of the case, which have constrained the Court to come to the conclusion that there was gross misuse and abuse of process of law at the instance of the appellantplaintiff. 3(i) In response to the proposal made by respondent No.3- Company to the appellantcompany for appointment of Super Distributor for the supply of patented Fire Killers for the State of Rajasthan , the appellant had accepted the said proposal as per the terms and conditions mentioned in the letter dated 24.1.2011. Accordingly the respondent No.3, appointed the appellant company as the Distributor for the supply of patented Fire Killers for the State of Rajasthan. The appellant company also got issued an irrevocable letter of credit dated 6.5.2011, for Rs. 1,22,50,000/-, in favour of the respondent No.3- company through the respondent No. 1 Bank as desired by the respondent No. 3. The said letter of credit was valid for 90 days from invoice date, which was extended till 5.9.2011. The respondent No. 2 was the banker of the respondent No.3 and also the negotiating bank. It appears that the respondent No. 3 Company pursuant to the said agreement supplied the goods to the appellant and submitted the Bills/documents to the respondent No. 2 bank for payment. The said Bills/documents were further sent to the respondent No. 1 Bank for confirmation. On 30.7.2011, the respondent No. 1 Bank issued confirmation/acceptance to the respondent No.2 Bank and also accepted the documents presented by the respondent No. 3. The respondent No. 1 Bank also undertook to make payment to the respondent No.2 under the letter of credit on the due date i.e. on 5.9.2011. Accordingly, the respondent No. 2 Bank negotiated the documents and made payment to the respondent No. 3 company. 3(ii)The appellant company filed the writ petition being No. 11970/2011 against the respondents on 6.9.2011, seeking issuance of appropriate writ, order or direction against the respondent No.1 bank not to transfer the amount of Rs. 1,22,50,000/-, mentioned in the letter of credit dated 6.5.2011 to the respondent No. 2 bank, and against the respondent No. 2 bank to take immediate action regarding extension of time limit of the letter of credit dated 6.5.2011. In the said writ petition, the Court passed following order on 9.9.2011:- "It is contended on behalf of the petitioner that petitioner as well as respondent No. 3 Darvesh Fire @ Safety Industries Pvt. Ltd. Company have agreed for the extension of letter of credit for 90 days, which is clear from email message dated 5th September, 2011 (Annexure-6) and petitioner has already issued instructions to his Banker-Oriental Bank of Commerce-respondent No.1, vide letter dated 5th September, 2011 (Annexure-9),but respondent No. 1 is not extending the letter of credit and is adamant to send amount in question to respondent No. 3. Issue Notice to respondents, returnable on 19th September, 2011 and the same may be given 'Dasti' to learned counsel for petitioner. Till then, parties shall maintain status-quo as it exists today in respect of letter of credit referred in writ petition. The stay order will come into effect only after service of notice upon respondents." 3(iii)The respondent No. 2 and 3, having been served with the notices in the writ petition, filed the applications under Art. 226(3) of the Constitution seeking vacation of the ex-parte ad-interim order dated 9.9.2011 passed by the Court. On 21.12.2011, the Court interalia passed following order on the said applications of the respondents under Art. 226(3) of the Constitution. "The matter has come up on application filed by the respondent No. 2 u/Art. 226(3) of the Constitution for vacation of the Ex-parte interim order dated 09.09.2011. Counsel for respondent No. 2 submits that the last date of letter of credit was 05/09/2011 and the petitioner sought extension for three months(90days) which has been noticed by the Court while granting ex-parte order dated 09/09/2011 and that too expired on 06/12/2011. Counsel seeks permission to invoke the letter of credit and submits that if there is any inter-se dispute between the petitioner and respondent No. 3, they are always at liberty to resolve the same by the mechanism provided under the law but the respondent No. 2 cannot be held responsible for such inter-se disputes. Counsel for petitioner, on the other hand, submits that copy of the application was made available to him on 09/12/2011. He wants some time to file counter. At the same time, counsel for respondent No. 1 represented by Mr. MA Khan submits that since the period of letter of credit expired and at least the respondent No. 1 may be discharged and any order passed by this Court may not cause prejudice so far as the rights of the respondent No.1 are concerned. Although the request made by counsel for petitioner for granting time has been seriously opposed by all the counsel appearing for the respondents, however, in the interest of justice, this Court considers it appropriate to grant reasonable time to the petitioner for doing the needful but for the delay which has been caused after expiry of 90 days, the respondent No. 2 will be entitled to charge interest at the rate of 18% per annum. List the matter on 04/01/2012." 3(iv)On 4.1.2012, the learned counsel for the appellant-petitioner sought permission to withdraw the said writ petition and the Court passed following order:- "Counsel for petitioner on instructions wants to withdraw the writ petition. The writ petition stands dismissed as prayed for." 3(v)In the meantime, on 2.1.2012 the appellant filed the suit being No. 2/2012 against the respondents-defendants before the trial court seeking the same reliefs as prayed for in the writ petition, for permanent injunction restraining the respondent No.1 (defendant No.1),from making the payment to the respondent No. 2 Bank of Rs.1,22,50,000/-, pursuant to the letter of credit dated 6.5.2011 and seeking direction against the respondentdefendant No. 2 for taking action with regard to the extension of time limit of the said letter of credit. The appellantplaintiff also filed an application being T.I. Application No. 1/2001, seeking temporary injunction of the similar nature pending the suit. Neither in the plaint nor in the T.I. Application did the appellant-plaintiff mention that the writ petition was already filed by it and the same was pending before the High Court. On 3.1.2012, the trial Court issued notices to the respondents-defendants and kept the matter on 4.1.2012. 3(vi)On 4.1.2012, the learned counsel for the respondent No. 1-defendant No. 1 Bank appeared and sought time for filing the Vakalatnama. On the same day the appellant- plaintiff by submitting a handwritten application sought amendment in the plaint under Or. VI R. 17 of C.P.C. for incorporating the fact that the writ petition being No. 11970/2011, filed by the appellant-plaintiff has been withdrawn on 4.1.2012. The trial court in the said order dated 4.1.2012, recording noobjection of the learned counsel appearing for the respondent No. 1 (though there was no Vakalatnama on record), allowed the said amendment and ordered to keep the matter on the next day i.e. 5.1.2012 for producing the amended copy of the plaint and the T.I. Application. 3(vii)On 5.1.2012, the learned counsels for the appellant-plaintiff and for the respondent No. 1-defendant No.1 bank remained present before the trial court with the amended copy of the plaint and T.I. Application. The trial court taking into consideration the order dated 9.9.2011 and 4.1.2011, passed by the High Court in the writ petition observed that the order dated 9.9.2011 was continued till 4.1.2012. The trial Court therefore, restrained the respondent No. 1-defendant No. 1 from making any payment to the respondent Nos. 2 and 3(defendant Nos. 2 and 3) in respect of the letter of credit dated 6.5.2011 and directed to maintain status-quo in that regard. The appellant-plaintiff neither mentioned in the amended plaint about the order dated 21.12.2011 passed by the High Court in the writ petition, nor produced the copy of the said order on record. The trial court thereafter directed to place the matter on 22.2.2012 for the service of notices to the respondent Nos. 2 and 3 (defendants Nos. 2 and 3). 3(viii)The respondents Nos. 2 and 3 (defendant Nos. 2 and 3) on having been served with the said notices and the ad-interim exparte order passed by the trial court, filed detailed replies and requested the trial court for preponing the hearing of T.I. Application. The trial court, therefore, fixed the hearing of T.I. Application on 11.2.2012 instead of 22.2.2012 vide order dated 7.2.2012 and directed the parties to file necessary reply/rejoinder during this period. It appears that thereafter the hearing was adjourned for one reason or the other and ultimately the trial court heard the T.I. Application on 29.3.2012, and passed the impugned order dated 11.4.2012 dismissing the said T.I. Application of the appellant-plaintiff with costs of Rs. 1100/-, holding that the plaintiff had not only failed to establish any prima facie case, but had suppressed material facts from the Court at the time of filing of the suit. Being aggrieved by the said order, the appellant plaintiff has filed the present appeal. ;