D.G.R.PATNAIK, J. - (1.) THIS appeal filed by the plaintiff -appellant is against the judgment dated 03.06.1999 and its corresponding decree dated 19.06.1999 passed in Money Suit No. 3 of 1994 by the Sub -Judge III, Saraikella, whereby the plaintiff -appellant's suit was dismissed on contest with cost. The plaintiff -appellant had filed the suit for a Money decree of Rs. 6,32,107.75 Paise together with interest against the defendant and also for a direction to the defendant to handover to the plaintiff 252 Argon Gas ' Cylinders in good condition.
(2.) THE case of the plaintiff is that it is a manufacturer of industrial gases and it is also a distributor of the products of the Gujarat State Fertilizer Corporation, who is producing Argon Gas and the same is supplied to the plaintiff. The defendant -company has been taking supplies of Argon Gas from the plaintiff -Company for the purpose of sale to its customers. The supplies used to be taken by the defendant Company from the plaintiff's industrial premises at Gamha:ia and the sale of this product was used to be made to customers in West Bengal. During the period of business transactions till 31.03.1992, the Defendant -Company had taken supply of the Argon Gas in cylinders but has failed and refused to return a total number of 250 Argon Gas cylinders to the plaintiff. On account of the non -refund of the cylinders, the plaintiff was put to a great loss on account of payment of rent @ Rs. 3.50 per day per cylinder to the Gujarat State Fertilizer Corporation. The defendant has neither returned the cylinders since June, 1992 nor have paid the rent for the cylinders. On the other hand, the defendant has subsequently notified that they had accumulated only 79 Gas cylinders belonging to the plaintiff and had asked the plaintiff to send their representatives to the defendant's workshop to take back the 79 cylinders, and have thus refused to acknowledge the remaining gas cylinders. The plaintiff has claimed, therefore, that it is entitled to realize rent @ Rs. 3.50 per day per cylinder for each of the 252 Argon Gas cylinders from the defendant and is also entitled to claim and receive interest on the total amount of rent charges @ 24 per cent per annum commencing from May, 1992 till October, 1993 besides recovery of the 252 Argon Gas cylinders from the defendant. The details of the computation of the amounts have been mentioned in Schedule A of the plaint. The defendant -Respondent has contested the suit of the plaintiff by filing its written statements, wherein, the entire claim of the plaintiff has been denied and disputed. The case of the defendant - Respondent is that just as the plaintiff -Company, the defendant -Company is also a manufacturer of Gases. On 25.01.1975, the defendant -Company and its associate Companies entered into a collaboration agreement with the Bihar State Industrial Development Corporation for setting up a plant at Jamshedpur for manufacturing the gases. As per Article 138 of the Articles of Association of the plaintiff -Company, the Managing Director of the plaintiff -Company was a person, who would be nominated by the defendant -Company and, accordingly, one Shri S. S. Mallick was appointed as the Managing Director of the plaintiff -Company from its inception. However, the person, who was appointed as the Managing Director of the Plaintiff -Company on account of his inefficient handling of the Company affairs, had brought the financial status of the plaintiff -Company in very bad shape and having thus been justified in discontinuing the post, he resigned on 31st April, 1992 from his post of Managing Director of the Plaintiff -Company. After his resignation, Shri Mallick joined hands with the Bihar State Industrial Development Corporation and thereafter he withdrew Ms resignation from his post, which he had held in the plaintiff -Company. In spite of protests made by the defendant -Company, permission was granted by the Board for the withdrawal of resignation and thereafter, Mr. Mallick was allowed to continue as the Managing Director of the plaintiff - Company in violation of the Collaboration Agreement. On resuming the charge of office, Mr. Mallick, in connivance with the then Company Secretary of the plaintiff -Company, began taking the arbitrary decisions in the Company affairs. The defendant -Company filed a suit in the High Court at Calcutta on 09.06.1993, vide Suit No. 199 of 1993 for a declaration that Shri S.S. Mallick had ceased to hold the post of Managing Director of the Plaintiff -Company, since he was no more the nominee of the defendant -Company after 23rd April, 1992, and for a further declaration that the various Board meetings held on 29th May, 1992 and thereafter are illegal and void. The High Court vide its order dated 09.06.1993 granted an ad interim injunction restraining Mr. Mallick from functioning as the Managing Director of the plaintiff -Company and the restraint order was subsequently made absolute by order dated 14.07.1993. The Court had also declared that any decision taken by the Board of the plaintiff -Company in its meeting held on 29.05.1993 and thereafter should not be given effect to. Thereafter, both the plaintiff -Company and Mr. Mallick filed an appeal against the order dated 14.07.1993, which is pending before the High Court of Calcutta. The contention of the defendant is that the said Mr. Mallick in collusion with the Company Secretary, namely, Shri N.C. Mukherjee thereafter filed frivolous cases against the defendant - Company. On 07.02.1994, they filed a Criminal Complaint Case vide Case No. Cl -62 of 1994 in the court of the learned Chief Judicial Magistrate, Jamshedpur under Sec. 420 and 406 of the I.P.C. against the defendant -Company and its officers on the allegation that the defendant -Company has not returned 252 Argon Gas cylinders. The defendant -Company challenged the order of cognizance of the offences as passed by the trial court, before this Court vide Criminal Misc. Case No. 3068 of 1994 (R). This Court after admitting the Cr. Misc. Case of the defendant -Company stayed further proceedings in the complaint case pending before the court below. After the order of stay was passed by this Court, the Plaintiff -Company filed the present Mcney Suit on the basis of the same allegations as made in the Criminal Complaint Case. The Criminal complaint case was quashed by the order of this Court, whereafter the plaintiff -Company filed yet another Criminal case vide C -1 Case No. 175 of 1994 in the court of the learned Chief Judicial Magistrate, Jamshedpur on the allegation of non -return of security deposit by some other Company and had impleaded the defendant -Company and its Officers as accused in the aforesaid case. The defendant -Company filed Cr. Misc. Case No. 4002 of 1995 (R) of this Court challenging the aforesaid Criminal Prosecution against it and by order passed by this Court, further proceedings in the Criminal Complaint case has been stayed. The defendant -Company have challenged the maintainability of the suit on the ground that there was no cause of action for filing the suit and also on the ground that the suit was barred by limitation, waiver, estoppel and acquiescence. The case of the defendant - Company is that it was declared as a sick industrial Company by the Board of Industrial and Financial Reconstruction (Bihar) in June, 1990. The Government of West Bengal declared the defendant -Company as Relief Undertaking within the meaning of the West Bengal Relief undertakings (Special Provision) Act, 1972. Since it is still continuing to be sick industrial unit, the Board of Industrial and Financial Reconstruction (Bihar), has sanctioned a Rehabilitation Scheme to the defendant -Company by an order dated 08.10.1993. The West Bengal Government while declaring the defendant -Company as a Relief Undertaking, has granted moratorium to the defendant -Company, which is valid up to 25th December, 1996. The plea of the defendant -Company is that the plaintiff - Company has not obtained prior sanction or relief from the Board of Industrial and Financial Reconstruction (Bihar) for the purpose of making a mandatory claim against the defendants as advanced in the plaintiff's suit. Therefore, such claim is not maintainable under Sec. 22 of the Sick Industrial Companies (Special Provision) Act, 1985. In addition to the aforesaid pleadings, the defendant -Company has denied to have retained the 252 numbers of the Argon Gas cylinders of the plaintiff -Company. The defendant has explained that the plaintiff -Company used to take gas filled for each of its customers from the defendant -Company and vice -versa and in the process, the defendant -Company used to send its cylinders to the plaintiff -Company. On assessing the balance of account on sales, it was found that till May, 1992 a total number of 603 Oxygen gas cylinders were refundable by the plaintiff -Company to the defendant - Company and the plaintiff -Company has illegally withheld the gas cylinders belonging to the defendant -Company and for the unlawful retention of the gas cylinders, the defendant -Company has been suffering substantial financial losses. The defendant has denied and disputed the genuineness of the bills mentioned in the Schedule of the plaint and has claimed the same to be false, incorrect and misleading.
(3.) THE trial court on the basis of the rival pleadings of the parties framed the following issues on recast for adjudication: 1. Is the suit as framed maintainable? 2. Has the plaintiff got any valid cause of action for the suit? 3. Is the suit barred by limitation? 4. Is the suit -barred by waiver, estoppel, and acquiescence? 5. Has this court got jurisdiction to entertain this suit? 6. Whether the defendant company has retained 252 Argon gas cylinders of the plaintiff company? 7. Whether the plaintiff company is entitled to charge rental @ Rs. 3.50 P. per day per cylinders with interest prevalent and future interest without any contact in between companies? 8. Is the plaintiff company entitled to get 252 Argon gas cylinders from the defendants company? 9. To what other relief or reliefs, if any, the plaintiff is entitled to get? ;