VISHNUDEO NARAYAN, J. - (1.) THIS appeal at the instance of the plaintiff -appellant has been preferred against the impugned judgment and decree dated 4.3.1980 and 15.3.1980 passed in Title Suit No. 37/19 of 1973/1977 by Shri Dharamdas Topno, 1st Additional District Judge, Dhanbad, whereby the said suit was dismissed.
(2.) THE plaintiff -appellant has filed the said suit for declaration of nis title and recovery of possession of the Sand Preparation and Washing Plant along with its an -nexures and fixtures detailed in Schedule B of the plaint situate at Dangi Hill in the district of Dhanbad and in the alternative, a decree for realisation of Rs. 6,15,354.42. The plaintiff -appellant has also sought, a decree of permanent injunction restraining the defendants -respondent from further operating or running the said plants and machineries and or intermeddling with the same and for the sale of the aforesaid machineries as per Schedule B during the pendency of the suit and/or deposit of the sale proceed in the Court. The plaintiff -appellant has also sought for decree of Rs. 6.96,983.77 as per Schedule A of the plaint along with interest pendente lite. The case of the plaintiff -appellant, in brief, is that the defendant -respondent Nos. 1 to 6 are possessed of a Quartzite Mine at Dangi Hill in the district of Dhanbad by virtue of an agreement dated 27.8.1960 with the Government of Bihar and they carried on mining operation in the said Quartzite Mine in co - partnership under the name and style of Bihar Bengal Minerals and defendant -respondent No. 1 Stefan Mandal is the managing partner of the said firm and they entered into an agreement with the plaintiff -appellant on 15.2.1965 for supply of Silica sand on terms and conditions expressly set forth in the agreement duly executed between the parties and as per the terms of the agreement aforesaid the defendant -respondent expressly covenanted and undertook to supply to the plaintiff -appellant from the said quarries a monthly quantity of 1000 tonnes of Silica sand @ Rs. 33.50 per tonne or such larger or lesser quantity as the plaintiff - appellant company may intimate to the defendants -respondent from time to time by placing the indents for the same and the Silica sand supplied to the plaintiff -appellant should conform to the size, specification and quantity as stipulated in the agreement and the price was to be paid by the plaintiff -appellant by way of adjustment in satisfaction pro tontp of defendants -respondent bills each and every month against hiring rent payable by the defendants -respondent to the plaintiff - appellant in the manner and in accordance with and the during the subsistence of a hire purchase agreement between the parties as per the agreement executed on 15.2.1965 and the balance of price, if any, after such adjustment in terms of the said agreement was to be paid by the plaintiff - appellant to the defendants -respondent against their bills and after adjustment against the hiring rent provided in the said hire purchase agreement is fully satisfied, the price aforesaid v/as to be paid by the plaintiff - appellant to the said defendants -respondent against their bills each and every month. It is also alleged that for the purpose of carrying into effect the above sand supply agreement the plaintiff -appellant agreed to supply and erect a sand preparation and washing plant at the work site as per terms of the agreement dated 15.2.1965 and the plaintiff -appellant in pursuance of the said agreement supplied to the defendants -respondent one sand preparation and washing plant and installed the said plant at or near the defendants -respondent stone quarries at Dangi Hill at the cost of Rs. 6,15,354.42. . The further case of the plaintiff -appellant is that the plant and machineries as supplied and delivered by the plaintiff -appellant to the defendants -respondent under the hire purchase agreement has been duly put into commission by the defendants -respondent and has been extensively used by them for sand processing purpose and notwithstanding assurances given and stipulations made by the hirers i.e. defendants - respondent in this respect the supply of Silica sand by the defendants -respondent to the plaintiff - appellant has been extremely unsatisfactory and far below the minimum monthly requirement of the plaintiff -appellant"and further the quality and grade of the Silica sand supplied by the defendants - respondent did not at all conform to the agreed specification. It is also alleged that the quantity of Silica sand supplied by the defendants -respondent during the period 67/68 and 68/69 amounted to 4,772 tonnes working out to a monthly average of about 200 tonnes against the agreed quota of 1000 tonnes per month and as a result of this a sum of Rs. 42,104.72 has been only recovered from the defendants -respondent as against the total advance made to them to the extent of Rs. 6,15,354.42 and interest, thereon amounting to Rs. 1,19,596.34 approximately. It is alleged that in terms of the hire purchase agreement dated 15.2.1965 and subsequently revised by the deed of rectification dated 4.8.1967 the defendants -respondent expressly undertook and agreed to liquidate the full price of the plant and machineries by 31.7.1970 but they miserably tailed and neglected to perform and discharge their outstanding obligations and liabilities and, accordingly, a sum of Rs. 6,96,983.77 as per account in the schedule of the plaint has become due and payable by the defendants -respondent to the plaintiff -appellant which is recoverable from them as well as from their property as per Clause 22 of the Hire Purchase Agreement read with the deed of rectification dated 4.8.1967. It is also alleged that the defendants -respondent have not paid up the stipulated value of the plant and machineries hired by them from the plaintiff appellant and the title in the said machineries has not passed unto them and if has all along remained with the plaintiff - appellant and even now rests with the plaintiff -appellant and the plaintiff -appellant has got a valid lien upon the said Sand Preparation Plant and is fully competent to seize and remove the same and to put up the same on sale and appropriate the money that may be fetched by the sale and hold the hirers liable for the balance price. Lastly it has been alleged that the defendants - respondent have entered into a fraudulent and collusive arrangement with defendant -respondent No. 7 M/s. Entracoast Private Limited who is now operating the said sand preparation and washing plant without the knowledge and consent of the plaintiff -appellant and there is no privity of contract between the plaintiff -appellant and defendant -respondent No. 7 M/s. Entracoast Private Limited who has no right to intermeddle with the plant and machinery aforesaid which appertains to the plaintiff -appellant. It is also alleged that the defendants -respondent have got no right or power to deal with or otherwise sublet and dispose of the sand preparation and washing plant set up by the plaintiff -appellant, at his own cost and the defendant -respondent No. 7 M/s. Entracoast Private Limited has got no interest at stake and the said defendants - respondent is handling the plant and machinery in a very reckless and desperate manner and without any regard to its safety and security and it has been substantially damaged by defendant -respondent No. 7 M/s. Entracoast Private Limited and there is every apprehension that the said plant and machinery would be a complete loss to the plaintiff -appellant if the said defendants -respondent is further permitted to operate the same in this unlawful and reckless manner.
(3.) WRITTEN statements were jointly filed by the defendant - respondent Nos. 1 and 6. Written statement were also filed by defendant -respondent Nos. 2, 5 and 7 separately. Vide order dated 11.3.1997 read with order dated 12.11.1998 the appeal against defendant -respondent Nos. 2 to 6 stood dismissed for default without further reference to the Bench. Therefore, there is no need to dilate regarding the case as set up by defendant - respondent Nos. 2 to 6.;