1. Present Appeal from Order, under Section 104 r/w. O. 43 R. 1(r) of the Code of Civil Procedure, 1908 ( CPC for short), has been preferred by the appellant original defendant No. 1 against the order passed below application exh. 31 in Special Civil Suit No. 58 of 2012 dated 19/10/2012 by the learned 9th Additional Senior Civil Judge, Bharuch, by which, the learned Judge was pleased to partly allow the said application exh. 31 and directed the defendants therein to handover the possession of the disputed Gas Compressor Package to the plaintiff which is also owned by the plaintiff. The learned Judge was further pleased to grant the ad-interim injunction and directed the defendants / their agents / Power of Attorney holder not to obstruct or to cause hindrance in the removal, use and/or possession of the said Gas Compressor Package, owned by the plaintiff therein. Being aggrieved and dissatisfied with the aforesaid order dated 19/10/2012 passed by the learned Court below, the appellant - original defendant No. 1 has preferred the present appeal.
2. Brief facts necessary for adjudication of the present appeal are that, the appellant is a partnership firm, engaged in the business of providing oil field services and gas compressor services. On tender notice being floated, inviting bids for hiring of Natural Gas Compression Services at GGS-IV, Gandhar and GGS-North Gandhar by the Oil and Natural Gas Commission (for short ONGC ) the respondent No. 2 herein has considered the appellant s bid for the same and ultimately, was awarded the work contract for aforesaid services for a period of nine months, vide letter dated 10/01/2011. Thereafter, the appellant / original defendant No. 1 entered into the Lease Agreement with respondent No. 1 herein / original plaintiff on 08/02/2011. As per the said agreement, two gas compressors were supplied by the respondent No. 1 original plaintiff to the appellant herein. The compressors were not operational, hence, the appellant herein, got repaired one compressor, spending an amount of Rs.1 crore and started utilizing the same. The other one was not usable and hence, the appellant was doing away with one compressor only. It is the case of the appellant that despite the above position, the respondent No. 1 herein was making demands for payment, contrary to the agreement. It is also the case of the appellant herein that the appellant was not required to make the payment when there is shutdown, waiting period or breakdown. However, the respondent No. 1 herein continued demands for payment and eventually, filed the civil suit for recovery of Rs.40,31,250/- from the appellant and for attachment. In the said civil suit the respondent No. 1 herein original plaintiff filed an application exh. 31 for ad-interim order to make use, utilization of the equipments / plants / machinery lying at the site. The said application exh. 31 was partly allowed by the learned Judge and hence, being aggrieved and dissatisfied with the same, the appellant herein has filed the present appeal, praying for quashing and setting aside the impugned order below application exh. 31 dated 19/10/2012.
3. It is pertinent to note that in Civil Application No. 13042 of 2012 in present Appeal from Order No. 478 of 2012, this Court (Coram: Honourable Mr. Justice Rajesh H. Shukla) was pleased to grant stay of the impugned order dated 19/10/2012 on condition that the petitioner shall deposit the rent for the two months i.e. at least Rs.15/- lakh on or before the next returnable date i.e. 11/12/2012, which was deposited, as reflected in order dated 11/12/2012.
4. Heard, Mr. Viral K. Shah, learned advocate for the appellant, Mr. Mihir Thakore, learned senior advocate, assisted by learned advocate Mr. Vijay M. Shukla for the respondent No. 1 and learned advocate Mr. Ajay R. Mehta for the respondent No. 2.
5. The learned advocate for the appellant submitted that the learned Court below has erred in law by holding that the plaintiff has failed to establish a prima facie case in his favour. He submitted that while deciding the interim application, the learned Court below is required to broadly examine and record a tentative finding as to whether the plaintiff has made out a prima facie case. He further submitted that while adjudicating such application, the learned Court does not finally decide the suit i.e. decree the suit. The learned advocate for the appellant further submitted that the learned Court below has committed a grave error in virtually allowing the main suit itself, which is perverse and contrary to the record. The learned advocate for the appellant submitted that by way of interim relief, main relief cannot be granted. The learned advocate further submitted that the learned Court below has committed an error in not believing the fact that the appellant has spent Rs.1 crore towards repairing of one Gas Compressor Machine, inspite of details being given for the same, which were, as per the appellant, sufficient to prove the case of the appellant. The learned advocate for the appellant further goes to submit that the learned trial Judge has committed an error apparent on face in ignoring the mandatory condition stipulated in the contract i.e. the appellant is entitled to retain the possession of the Gas Compressor beyond the contract period, if the circumstances demands. The learned advocate for the appellant further submitted that the learned Court below has failed to appreciate that the respondent No. 1 herein was not entitled to claim rent for the period in which there was breakdown or blacklisting or no work, as per the terms of the contract and has committed error in holding that the plaintiff respondent No. 1 herein is entitled to receive money from the appellant. The learned advocate for the appellant further submitted that the plaintiff respondent No. 1 herein has resorted to suppression of material facts as it has not stated in the plaint about the filing of the criminal complaint in the Court of the learned Judicial Magistrate First Class, Jambusar. By the aforesaid submissions, the learned advocate for the appellant prayed for to allow the present Appeal from Order and to quash and set aside the impugned order.
5.1 Per contra, Mr. Mihir Thakore, learned senior advocate, assisted by learned advocate Mr. Vijay M. Shukla for the respondent No. 1 herein has vehemently opposed the present Appeal from Order and inviting the attention of the Court to page 80, Para 3 and submitted that the contract was awarded to appellant herein for a period of nine months, starting from 10/01/2011 to 09/10/2011. The learned senior advocate for the respondent No. 1 submitted that it is the lease agreement of movable property and it is not a case like a tenant under Rent Act in immovable property. He submitted that there is nothing to show in the agreement that there is any extension of contract by the ONGC. The learned senior advocate for the respondent No. 1 has invited attention of the Court to page 41 of the Paper-book, which is the Statement produced by the appellant herein, claiming that Rs.40,45,000/- has been paid to the respondent No. 1 herein, which is paid towards the lease rent including Rs.7.5 lakh, which was required to be paid per mensem, as per the lease agreement but the said payment is a short payment made by the appellant herein which will be decided in the suit. The learned senior advocate for the respondent No. 1 has further invited attention of the Court to page 42 of the Paper-book, which is the tender notice, issued by the respondent No. 2 herein ONGC inviting fresh bids dated 22/06/2012 for hiring of Natural Gas Compression Services for a period of twelve month for this very place and submitted that looking to the same, it clearly transpires that there is no extension of contract after the period of nine months, as claimed by the learned advocate for the appellant.
6. I have considered the above-referred rival submissions made by the learned advocate for the parties in light of the decision rendered in Wander Ltd. Vs. Antox India (P) Ltd., reported in 1990 (Supp.) SCC 727, a bench of three Hon ble Judges of the Hon ble the Apex Court has laid down the test to be applied to assess the correctness of the order of the learned Single Judge, which has been consistently followed, is that whether the order is so arbitrary, capricious or perverse that it should be interfered with at an interlocutory stage in an intra Court appeal.
7. As per the case of the appellant / original defendant No. 1, the Gas Compressor of the ownership of respondent No. 1 / original plaintiff was lying in dust in a corner of the respondent No. 1 company for last 07 years and the appellant company had contacted the respondent No. 1 for taking the said Gas Compressor Package on rent at that time, respondent No. 1 / original plaintiff, company had stated clearly that they will not provide any kind of financial assistance for repairing purpose, however, the appellant / original defendant No. 1 company, with the help of their technical staff and at their cost, said Gas Compressor was got activated. Not only this, but the appellant / original defendant No. 1 had also decided to make payment of Rs.7,50,000/- towards rent of said Gas Compressor Package to the respondent No. 1 / original plaintiff for which the appellant and respondent No. 1 had entered into an agreement dated 08/02/2011. The above case has been contended by the appellant / original defendant No. 1 in its reply dated 22/09/2012, exh. 31 at page 51.
7.1 In the above background, now reply to notice and further notice dated 02/02/2012 at page 38, given by the appellant / original defendant No. 1 is required to be looked into. It has averred in the said notice dated 02/02/2012 that whenever there is breakdown of Gas Compressor or it being in damaged condition, the appellant / original defendant No. 1 were not required to pay as per the condition of Lease Deed. Now, if we see the condition of the Lease Deed dated 08/02/2011 at page 77, the same is contrary to what has been averred by the appellant / original defendant No. 1 herein above and the same reads as under:
That the lessor agreed that the lessee will pay a fixed sum of Indian Rupees 7,50,000/- (Rupees Seven Lakh Fifty Thousand only) per moth, through out this contract period, as monthly lease / rental charges, within 30 days from the date of submission of monthly lease / rental invoices by Lessor without any deduction for shutdown or waiting period, if any, and irrespective of the payment from ONGC to Lessee. Interest @ 18% p.a. shall be charged for any payments delayed over 30 days from the date of receipt of invoices.
(emphasis supplied) Under the above circumstances, in my view, the learned Court below has not failed to appreciate that the respondent No. 1 / original plaintiff herein was entitled to claim rent for the period in which there was breakdown or blacklisting or no work, as per the terms of the agreement and has not committed any error as has been submitted by the learned advocate for the appellant.
7.2 It has also averred in the said reply to notice and further notice dated 02/02/2012, the respondent No. 1 / original plaintiff were not entitled to submit tender to ONGC. So far as agreement dated 08/02/2011 is concerned, the same appears silent on the said aspect.
7.3 Now, the third contention which has been averred is very important in the said reply to notice and further notice dated 02/02/2012. It has been specifically averred that as the respondent No. 1 / original plaintiff has committed breach of condition, the appellant / original defendant No. 1 did not want to extend the Lease Agreement. This appears important admission on the part of the appellant / original defendant No. 1. Even if the appellant wants to extend the Lease Agreement, it was for 09 months only and it is important to note that ONGC, respondent No. 2 herein has not extended the said period after completion of 09 months and invited the fresh bids vide Tender Notice dated 22/06/2012 for the said very place. It is not the case of the appellant that in light of Tender Notice dated 22/06/2012 he has got the contract from ONGC, the respondent No. 2. Now, it can be easily said that if the lease is not extended, in no way, the Gas Compressor on rental basis for 09 months remained in custody of the appellant, can be saved because it is quite natural that if the machine remained idle, the same will be deteriorated and destroyed. Much has been argued by the learned advocate for the appellant that by way of interim relief, main relief cannot be granted. Moreover, the learned advocate for the appellant has placed reliance on a decision in the case of Indore Development Authority Vs. Mangal Amusement (P) Ltd., reported in 2010 (0) GLHEL SC 49204 (2010 (12) SCC 514). It is well settled legal position that by way of interim order, main relief cannot be granted at the interim stage. In the case referred above, the respondents were permitted to construct the restaurant and banquet hall etc. on a land, held by them on licence. In my view, the said ratio is not applicable to the case on hand because the respondent No. 1 / original plaintiff is the owner of Gas Compressor as discussed above and the Lease Agreement has come to an end on 09/10/2011 and it is not the case of the appellant / original defendant No. 1 that thereafter, he got the new contract for further period from ONGC. It is also important to note that so far as expenses incurred to the tune of approximately Rs.81,47,813/- is concerned, no suit or counter claim has been filed by the appellant. Moreover, the Gas Compressor of the ownership of respondent No. 1 / original plaintiff if remained idle for more time, it will definitely deteriorated and under the circumstances, there appears no substance in the above-referred submissions made by the learned advocate for the appellant because the Special Civil Suit No. 58 of 2012 has been filed for the recovery of Rs.40,31,250/- which is yet to be tried. Having regard to the nature of the controversy, in my view, just and balanced order has been passed by the learned trial Judge below exh. 31. The learned trial Judge has passed a reasoned order, and in no way, could it be said that he has exercised the discretion in an arbitrary, capricious or perverse manner. There appears no reason to interfere and set-aside the same. This Appeal from Order is, therefore, dismissed. The amount of Rs.15 lakh, deposited by the appellant in light of the order dated 27/11/2012 is ordered to be refunded to the appellant original defendant No. 1, following the due procedure for the same. The Civil Application No. 13042 of 2012 accordingly stands disposed of. Notice is discharged.
[ G. B. Shah, J. ] hiren Further Order Mr.Viral K. Shah, learned advocate for the appellant has submitted that interim protection granted earlier by this Court be extended for the period upto six weeks. There appears no substance in the said submission and accordingly it is rejected.
[ G. B. Shah, J. ] hiren Page 14 of 14