S.K. Agarwal, J.@mdashThis order will dispose of application of the defendants under Order 39 Rule 10 read with Section 151 of Code of Civil Procedure, seeking direction to the plaintiff for payment of Rs. 24,62,935.40 or in the alternative, to allow the defendants to encash the Bank Guarantee furnished by the plaintiff, pursuant to the order dated 11.9.1997. The plaintiff has filed the reply contesting the same.
2. Facts in brief are : that plaintiff filed a suit pleading that it is engaged in the business of marketing, milk products including, butter, cheese, milk powder, etc. under the popular brand names of "Amul" and "Sagar" having its registered office at Gujarat and regional office at Delhi. The products of the plaintiff are essential commodities under the Essential Commodities Act. The defendants are engaged in the business of running cold storage under the name of M/s. Jawahar Mal Cold Storage. plaintiff used to store its products at the cold storage of M/s. Fruit & Vegetables a unit of the National Dairy Development Board, at Delhi. In March, 1997, there was a temporary shortage of storage space for plaintiff''s products in Delhi, accordingly the plaintiff contacted defendants to avail of its cold storage facilities for a period of three months. It was orally agreed that the plaintiff would take the space of storing minimum 400 MTs of butter at the rate of Rs. 350/- per net MT per month from the date of occupancy, and if the quantity on any given day in a month exceeds 400 MTs. the plaintiff would pay to the defendants on the basis of the maximum quantity stored on any day for that particular month. The plaintiff began the occupancy of the defendants'' cold storage w.e.f. 11.3.1997 for a period of three months, which expired on 10.6.1997. It was agreed that the defendants would strictly comply and honour with all delivery instructions issued by the plaintiff from time-to-time to release the goods from the cold storage, and the plaintiff would pay to defendants @ of Rs. 1.20 per case of butter as unloading and loading charges. As the plaintiff was to vacate the cold storage and remove its goods on 10.6.1997, they requested to defendants to cooperate with him in vacating the cold storage. The defendants did not permit the plaintiff to remove its goods worth Rs. 3.79 crores (as per plaintiff''s closing books of account), stating that till such lime full payment is made as per their claim, the entire stock of goods will not be permitted to be removed. On 9.6.1997 bulk of stock of butter lying in the cold storage of the defendants had the maximum retail price Rs. 53.50 per pack of 500 gms. The price was revised from Rs. 53.50 to Rs. 58.50 per pack w.e.f. 14.4.1997. In defendants'' cold storage both old and new price stock of butler was stored. As per the policy old stock was to be released first, so that unscrupulous traders do not fleece the public. Details of products stored in cold storage of defendants as on 14.8.1997 are given in Annexure-A of the plaint. On these averments plaintiff prayed for a decree of mandatory injunction directing defendants to give possession of the goods belonging to the plaintiff, stored in the cold storage.
3. Defendants in written statement denied the averments made in the plaint and inter alias pleaded that the plaintiff entered into a contract with the defendants on the basis of letter dated 31.3.1997 agreeing to hire three chambers of the defendants for a period of two years for its refrigerated products. The said chambers were to be operated round the year. The insurance of the goods was to be taken by the plaintiff and insurance of the building and machinery was to be taken by the defendant. plaintiff was obliged to pay storage charges to the defendants a sum of Rs. 4.06 lakhs per month from 1.3.1997 and Rs. 4.64 lakhs per month from 1.3.1998 till 28.2.1999, for three chambers of 1160 MTs. The contract was non-determinable prior to 28.6.1999. The defendants had a lien over the goods in the sum of Rs. 99,40,000/-, in respect of storage charges besides a sum of Rs. 83,415.60 towards labour charges till 22.8.1997. plaintiff insisted to take delivery of the goods without even making admitted payment with mala fide intention, which was not permitted. In the replication, plaintiff denied purported agreement (letter) agreement dated 31.3.1997, as fabricated. It is specifically pleaded that no such letter was even executed by any officer of the plaintiff and signatures of Sanjay Kumar Panigrahi on the letter are forged. It is also denied that the plaintiff obliged to pay to defendants a sum of Rs. 4.06 lacs per month w.e.f. 1.3.1997 as a storage charges or that the agreement was for two years. The averments made in the plaint were reiterated.
4. On 11.9.1997, after hearing the parties, plaintiff was directed to furnish Bank Guarantee in the sum of Rs. 24.00 lacs and to furnish surety of Rs. 80.00 lacs to the satisfaction of Registrar of this Court and on furnishing of same plaintiff was permitted to remove butter from the cold storage of the defendants. The order reads as under:
"Heard.
In order to watch the interests of both the parties, the plaintiff is, directed to furnish Bank Guarantee in the sum of Rs. 24 lakhs and for rest of the amount which comes to Rs. 80 lakhs, surety shall be filed to the satisfaction of the Registrar, High Court of Delhi. On furnishing Bank Guarantee, the entire Amul butter shall be removed by the plaintiff from the cold storage, but previous orders shall continue till the next date i.e. 10.11.1997 and any non-compliance of the orders shall be viewed very seriously. The Bank Guarantee be furnished within one week and surely be filed within two weeks."
5. As non-release of products could cause an artificial scarcity in the market. Local Commissioner was appointed to help the plaintiff, to remove me butter from the cold storage in excess of the value of Rs. 24.00 lacs, subject to filing of undertaking that the Bank Guarantee shall be filed within one week and surety within two weeks. After the Bank Guarantee and surety were furnished on 26.9.1997, it was ordered that the Bank Guarantee shall be kept alive during the pendency of the suit and remaining stocks was permitted to be removed with the help of Local Commissioner. On 10.11.1997 plaintiff paid a cheque of Rs. 3,87,076/- dated 12.7.1997, towards hire charges.
6. By this application defendants have prayed for orders, directing the plaintiff to make payment of Rs. 24,62,935.40 or in the alternative, to encash the Bank Guarantee furnished by the plaintiff pursuant to the order dated 11.9.1997 and release the payment to the plaintiff.
7. In short, case of the plaintiff, that by letter dated 9.6.1997 they informed the defendants that they wanted to vacate cold storage, but defendants started creating hindrance. On 8.8.1997 plaintiff served a legal notice on the defendants for release of goods, calling upon them that they shall be responsible for losses suffered by plaintiff; and on 21.8.1997, the suit was filed. That the plaintiff has already paid the hire charges uptil 10.6.1997, and they are not liable to pay any further amount to the defendants.
8. I have heard learned Counsels for the parties and have been taken through the record.
9. Learned Counsel for plaintiff argued that be permitted to remove the goods under the orders of the Court in September, 1997; that plaintiff has already paid the charges uptil 10th June, 1997 and that it is not liable to pay any further amount. On the other hand, learned Counsel for defendants, argued that in terms of the contract, as evidenced by letter dated 31st March, 1997, defendants had the lien over the goods and the plaintiff was obliged to pay to the defendants. The contract was for a period of two years, Therefore, they be permitted to encash the Bank Guarantee or at least to the extent of admitted amount.
10. Rule 10 of Order 39 of Code can be applied, when the liability is admitted by a party, or the money or a thing which is the subject-matter of the suit is held by it as a trustee for another or is due to another party like the admitted liability of the arrears of rent. In this case, as noticed above, original letter dated 31st March, 1997 relied upon by the defendants has not been filed. The defendants claim that the same was misplaced. The case of the plaintiff is that this letter is forged and fabricated. The whole case of the defendants is based on this letter. There is no other material on record to support the terms of the contract, spelled from this letter. The plaintiff has already executed the Bank Guarantee for Rs. 24.00 lacs which have been ordered to be kept alive pending final disposal of the suit. The plaintiff has separately given a surety for a sum of Rs. 80,000/-. The question whether there was any breach of contract by the plaintiffs, as pleaded by the defendants, and whether the defendants are entitled to receive any amount can only be decided after the parties lead their respective evidence. In the absence of any clear admission, the application is not sustainable.
For the foregoing reasons, I find no merit in the application. The same is dismissed.
