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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. 3533 - 3540 OF 2012
(Arising out of SLP (C) Nos. 4998-5005 of 2010
Bandekar Brothers Private Ltd. Etc. .... Appellant (s)
Versus
M/s V.G. Quenim & Ors. .... Respondent(s)
J U D G M E N T
P. Sathasivam, J.
1) Leave granted.
2) These appeals are filed against the final judgment and
order dated 14.12.2009 passed by the High Court of Bombay
at Goa in Writ Petition Nos. 558-561 of 2009 filed by the
respondents herein and Writ Petition Nos. 600-603 of 2009
filed by the appellants herein wherein the High Court disposed
of all the writ petitions remanding the matter back to the trial
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Court for de novo consideration of the applications being
C.M.A. Nos. 26 of 2007 to 29/2007/A and C.M.A. Nos.
31/2007 to 34/2007/A filed by the appellants herein in
Special Civil Suit Nos. 7, 8, 14 & 21/2000/A respectively.
3) Brief facts:
a) M/s Bandekar Brothers Pvt. Ltd. filed three suits against
the respondents herein for recovering money being Special
Civil Suit No. 7/2000/A on 08.02.2000 for a suit claim of
Rs.91,89,973.50 and for further interest against the hiring of
services; Special Civil Suit No. 14/2000/A on 31.03.2000 for a
suit claim of Rs.2,65,71,705/- and for further interest against
the transactions of Iron Ore taken on loan/returnable basis by
respondent No.1; Special Civil Suit No. 21/2000/A on
09.06.2000 for a net suit claim of Rs.2,98,58,668.49 for
further interest being the dues against the transactions of
exchange of Ore taken place between the parties. M/s
Vasantram Mehta & Co. Private Limited, a sister concern of
M/s Bandekar Bros. Private Limited filed a Civil Suit being
Special Civil Suit No. 8/2000/A on 17.02.2000 against the
respondents for a suit claim of Rs.7,40,405.83 and for further
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interest against the hiring of services. With the said four civil
suits, the respective appellants also filed applications seeking
ad-interim/interim reliefs being CMA Nos.19, 50, 26, 60, 99
and 160/2000/A respectively.
b) In C.M.A. No. 19/2000/A in Special Civil Suit
No.7/2000/A, the Civil Judge by order dated 09.02.2000
restrained the respondent-Company from creating further
interest in the iron ore lying at its Kudnem Stockyard at
Kudnem. On 10.03.2000, the respondents, under the written
statement, denied having had any transactions of loan and
exchange of Ore with the appellants and in turn filed a
counter claim by issuing a fabricated Debit Note dated
09.03.2000 for Rs.1,88,27,796/- claiming to have supplied
51416.800 WMT of Ore to them on sale basis until June 1999.
c) On 18.03.2000, the appellants filed another application
being CMA No. 50/2000A applying for a temporary injunction
on the ground that despite the order dated 09.02.2000 passed
by the Civil Judge, the respondent-Company had sold iron Ore
to its sister concern – M/s Kudnem Mineral Processing
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Company Private Ltd. By order dated 21.03.2000, the Civil
Judge declined to grant ad interim relief to the appellants.
d) Against the said order, the appellants preferred CRA No.
83 of 2000 before the High Court of Bombay, Panaji Bench at
Goa. By order dated 31.03.2000, the High Court remanded
the matter back to the trial Court by recording the statement
made by the respondents that they would not dispose of or
alienate the assets described in the schedule to the said order
till the disposal of CMA No.50/2000/A by the trial Court. One
of the assets included in the said Schedule was a residential
bungalow.
e) On 13.07.2000, the respondent-Company filed written
statement in Special Civil Suit No. 8/2000/A in which they
claimed to have supplied 27573.780 WMT of Ore to the sister
concern of the appellants on sale basis from February, 1996 to
June, 1997 and filed a counterclaim for the said sum. In
Special Civil Suit Nos. 14 and 21/2000/A also, the
respondents filed written statements and denied having had
any transactions of loan/return and exchange of Ore between
them during the period from February, 1996 to June, 1999.
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f) Despite the stay order passed by the High Court on
31.03.2000, the respondents removed one of the scheduled
items. Against that action of the respondents, the appellants
filed MCA No. 480 of 2000 in CRA No. 83 of 2000 before the
High Court for contempt of the order dated 31.03.2000. By
order dated 18.01.2001, the High Court directed the
respondents not to take any of the scheduled items till the
disposal of the applications filed by the appellants before the
trial Court.
g) By a common order dated 13.03.2001, the trial Court
dismissed CMA No.19/2000/A filed for attachment before
judgment whereas in CMA No.50/2000/A, it granted
injunction only to the extent of machineries.
h) Aggrieved by the said order, the appellants preferred
Appeal Nos. 27 and 28 of 2001 before the High Court wherein
the High Court by order dated 11.05.2001 again remanded the
matter back to the trial Court to decide the applications
afresh. In that order, the High Court recorded the
undertaking given by the respondents that they would abide
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by order dated 18.01.2001 passed by it till the trial Court
finally dispose of all the applications pending before it.
i) On remand, the trial court, by its common order dated
05.09.2001, granted some reliefs in all the applications filed
by the appellants in the said four suits.
j) Aggrieved by the said order, the respondents filed appeals
from Order Nos. 57 to 61 of 2001 before the High Court which
were dismissed by the High Court by a common judgment
dated 13.12.2001.
k) Challenging the said order of the High Court, the
respondents filed special leave petitions (converted to C.A.
No.6102 of 2004) before this Court. This Court, by order
dated 19.04.2002, modified the order dated 05.09.2001
passed by the trial Court to the extent setting aside the
conditional attachment on the properties. This Court further
directed the respondents to give an undertaking before the
trial Court that they would not part with the shares of M/s
Vilman Packaging Pvt. Ltd., the residential bungalow at
No.436, Miramar, Panaji, Goa and the mining machinery.
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l) On 29.01.2003 the respondent-Company filed a suit for
recovery of money against the appellants.
m) After completion of arguments in three suits (Civil Suit
Nos. 7, 8 and 14/2000/A) judgments were reserved by the
trial Court. The hearing was not completed in Civil Suit No.
21 of 2000/A.
n) Respondent No.1 (e) submitted an application before the
North Goa Planning and Development Authority to construct a
new residential bungalow in his name on the plot on which
H.No.436 existed and the adjacent plot owned by him and for
the amalgamation of the said two plots. By order dated
13.12.2006, the Authority granted the said permission.
o) For the reasons stated by the Civil Judge, this Court by
order dated 27.04.2007 extended the time to decide the suit
within three months.
p) On 18.09.2007, the trial Court commenced the
arguments in Special Civil Suit No.21/2000/A. The
respondent filed an application dated 28.09.2007 to withdraw
the special Civil Suit No.1 of 2003. By order dated
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01.10.2007, the trial Court allowed the said application for
withdrawal.
q) The appellant filed application being CMA No. 26/2007
before the trial Court on 30.11.2007 under Order XXXIX Rule
2A seeking to pass appropriate orders for disobedience of
injunction granted by the trial Court and for striking off the
defence for willful breach of the undertaking given to the trial
Court under Rule 11.
r) The appellant also filed C.M.A No. 31 of 2007 before the
trial Court on 10.12.2007 under Order XXXIX Rules 2 and 7
for injunction against the respondents from carrying out any
further work or damaging the property in question. In other
three suits also, the appellant filed the similar applications.
s) In the said applications, the respondent filed reply dated
10.04.2008 justifying the demolition and an additional
affidavit tendering conditional apology.
t) The Civil Judge, Senior Division, Panaji by order dated
06.06.2009 dismissed C.M.A. No.26/2007 and granted the
relief prayed for in C.M.A. No.31/2007.
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u) Aggrieved by the order dated 06.06.2009, the appellants
preferred W.P. Nos. 600 to 603 of 2009 and respondents
preferred W.P. Nos. 558-561 of 2009 before the High Court.
By the impugned final judgment and order dated 14.12.2009,
the High Court disposed of the writ petitions by remanding the
matter to the trial Court for de novo consideration of the
applications filed by the appellants.
v) Aggrieved by the said order, the appellants have filed
these appeals by way of special leave petitions before this
Court.
4) Heard Mr. Ranjit Kumar and Mr. Krishnan Venugopal,
learned senior counsel for the appellants and Mr. Mukul
Rohtagi, learned senior counsel for the respondents.
5) The only point for consideration in these appeals is
whether the High Court is justified in remanding the matter to
the trial Court for de novo consideration of the applications
filed by the appellants herein?
6) It is brought to our notice that pursuant to the order of
the High Court dated 14.12.2009, the trial court has
proceeded to hear the arguments on the applications and, in
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fact, heard arguments on the said applications for a period of
11 days commencing from 06.01.2010 ending on 20.02.2010.
It is seen from the records that the grievance of the plaintiff in
all the applications under consideration is that even though
the defendants have given an undertaking that they will not
part with the shares of M/s Vilman Packaging Private
Limited, House No. 436 at Miramar, Panaji and the Mining
Machinery on 13.05.2002 pursuant to the order of this Court
dated 19.04.2002, the defendants have demolished the said
residential bungalow, which was the subject matter of the
undertaking given by them. In view of the long history of the
case and various earlier orders passed by the High Court as
well as by this Court, we are not inclined to go further and
probe the matter once again.
7) Mr. Mukul Rohtagi, learned senior counsel for the
respondents fairly stated that though the respondents have
demolished the bungalow, they have not encumbered or sold
the same to anyone, on the other hand after demolition, a new
bungalow was constructed. He also pointed out that the said
plot was adjoining to one which also belongs to them. In the
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form of an affidavit, Shri Prasad Vassudev Keni, respondent
No.6 and his wife, Smt. Vini Prasad Keni, respondent No.7
filed an undertaking. In both the affidavits, they highlighted
that their ownership and entitlement of the property in
question, construction of new bungalow and the two plots,
namely, Chalta Nos. 11 and 15 of P.T. Sheet No. 116, which
bungalow has been allotted House No.13/436/A. They also
asserted that as on date both of them are the owners of the
said new bungalow and the land on which the said bungalow
is existing. They also made a specific undertaking that
pending disposal of the suits, viz., Special Civil Suit Nos.
7/2000, 8/2000, 14/2000 and 21/2000 pending in the Court
of Civil Judge, Senior Division at Panaji, Goa, they shall not
part with the possession of the said bungalow bearing House
No.13/436/A as also the land on which the said bungalow is
existing nor the said bungalow and land on which the
bungalow is existing shall be encumbered in any manner in
favour of any third party nor any interest will be created in
favour of any third party. Mr. Rohtagi prayed for recording of
the said undertakings of respondent Nos.6 and 7. As far as
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the sale of iron ore and machinery etc. is concerned, it is
claimed that the injunction order was not served on them on
the date when the alleged disposal took place. It is a matter
for verification and it is for the trial Court to ascertain from
the records.
8) Though Mr. Ranjit Kumar and Mr. Krishnan Venugopal
vehemently opposed the order of the remand and the conduct
of the respondents herein, as observed earlier, considering
various disputes and orders passed by the trial Court, the
High Court and this Court on different occasion and in order
to shorten the litigation, taking note of the stand taken by the
respondents, particularly, respondent Nos. 6 & 7 in the form
of affidavits, we are not inclined to interfere with the impugned
order of the High Court. On the other hand, we permit both
parties to clarify their stand briefly before the trial Court and
leave it to the Court for passing appropriate orders, as directed
by the High Court. Respondent Nos. 6 and 7 are permitted to
file an affidavit in the form of an undertaking before the trial
court as filed in this Court.
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9) In the light of what is stated above, we dispose of these
appeals by confirming the order of remand made by the High
Court and direct the trial Court to pass appropriate orders as
early as possible, preferably within a period of three months
from the date of receipt of copy of this judgment. There shall
be no order as to costs.
...…………….…………………………J.
(P. SATHASIVAM)
.…....…………………………………J.
(J. CHELAMESWAR)
NEW DELHI;
APRIL 13, 2012.
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