BANDEKAR BROTHERS PRIVATE LTD. ETC.versusM/S. V.G. QUENIM & ORS.

                    [2012] 5 S.C.R. 227


      BANDEKAR BROTHERS PRIVATE LTD. ETC.                       A
                              v.
                 MIS. V.G. QUENIM & ORS.
          (Civil Appeal Nos. 3533-3540 of 2012)
                      APRIL 13, 2012
                                                                B
     [P. SATHASIVAM AND J. CHELAMESWAR, JJ.)

      Remand - Recovery suits as also various· applications
filed by appellant against respondent - Orders passed by trial
court, High Court and Supreme Court in the matter on C
different occasions - Remand of the matter to the trial court
for de novo consideration of the applications filed by the
appellants, by the High Court - Interference with - Held:
Considering the various disputes, orders passed by the courts
and in order to shorten the litigation, taking note of the stand D
taken by the respondents in the form of an affidavit that the
property which was the subject matter of the undertaking given
by them, would not be encumbered in any manner in favour
of any third party nor any interest would be created in favour
of any third party, interference with the remand order passed E
by the High Court, not called for - Both parties permitted 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.

    Appellants filed suits against respondents for F
recovery of money. Applications were also filed seeking
ad-interim/interim reliefs. Thereafter, several disputes
arose and several applications and petitions were filed.
The trial court, the High Court and the Supreme Court on
different occasion passed various orders. The G
respondents gave an undertaking that they would not
part with the shares 'VP' company and the Mining
Machinery, however, pursuant to the order passed by the

                             227                                H
    228       SUPREME COURT REPORTS             [2012] 5 S.C.R.

A Supreme Court, the respondents demolished the said
  residential bungalow. Aggrieved, the appellants filed an
  application and the same was dismissed. The appellants
  then filed a writ petition. The respondents also filed a writ
  petition. The High Court disposed of the writ petitions by
B remanding the matter to the trial court for de novo
  consideration of the applications filed by the appellants.
  Therefore, the appellants filed the instant appeals.

          Disposing of the appeals, the Court

C      HELD: 1.1 Pursuant to the order of the High Court,
  the trial court proceeded to hear the arguments on the
  applications and, in fact, heard arguments on the said
  applications for a period of 11 day-s. It is seen from the
  records that the grievance of the plaintiff in all the
D applications under consideration is that even though the
  defendants have given an undertaking that they would
  not part with the shares 'VP' company and the Mining
  Machinery on 13.05.2002 pursuant to the order of this
  Court dated 19.04.2002, the defendants demolished the
E 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, the matter is
  probed once again. [Para 6] [235-A-D]
F      1.2 Respondents fairly stated that though the
  respondents 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
G one which also belongs to them. In the form of an
  affidavit, respondent No.6 and his wife-respondent No.7
  filed an undertaking. In both the affidavits, they
  highlighted that their ownership and entitlement o~ the
  property in question, construction of new bungalow ~and
H the two plots. They also asserted that as on da~e both of
 BANDEKAR BROTHERS PRIVATE LTD. ETC. v. V.G. 229
              QUENIM & ORS.

them are the owners of the said new bungalow and the            A
land on which the said bungalow is existing. They also
made a specific undertaking that pending disposal of the
suits pending in the Court of Civil Judge, Senior Division,
they would not part with the possession of the said
bungalow as also the land on which the said bungalow            B
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 would be
created in favour of any third party. It was prayed for
recording of the said undertakings of respondent Nos.6          c
and 7. As far as 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. [Para 7] [235-E-     0
H; 236-A-C]

     1.3 Though the counsel for the appellants
vehemently opposed the order of the remand and the
conduct of the respondents, considering various
disputes and orders passed by the trial court, the High         E
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 and 7 in
the form of affidavits, the impugned order of the High
Court is not interfered with. On the other hand, both           F
parties are permitted 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   G
in this Court. The order of remand made by the High
Court is confirmed and the trial court is directed to pass
appropriate orders. [Para 8] [236-0-F]

    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
                                                                H
3533-3540 of 2012.
      230         SUPREME COURT REPORTS            [2012] 5 S.C.R.


A ·       From the Judgment & Order dated 14.12.2009 of the High
      Court of Bombay at goa in Writ Petition Nos. 558-561 of 2009.

          Ranjit Kumar, Krishan Venugopal, B.V. Gadnis, A.
      Venayagam Balan for the Appellant.
B         Mukul Rohtagi, Rajesh Kumar, Raghnath, Yogesh
      Nadankar, Sarwa Mitter (for Mitter & Mitter Co.) for the
      Respondents.

            The Judgment of the Court was delivered by
c           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
D 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
  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/
E 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
F 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
G 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
H & Co. Private Limited, a sister concern of M/s Bandekar Bros.
BANDEKAR BROTHERS PRIVATE LTD. ETC. v. VG. 231
     QUENIM & ORS. [P. SATHASIVAM, J.]
Private Limited filed a Civil Suit being Special Civil Suit No. 8/    A
2000/A on 17.02.2000 against the respondents for a suit claim
of Rs.7,40,405.83 and for further 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

     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,           C
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             D
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          E
to its sister concern - Mis Kudnem Mineral Processing
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          F
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         G
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            H
    232      SUPREME COURT REPORTS                 [2012] 5 S.C.R.


A 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
B of loan/return and exchange of Ore between them during the
  period from February, 1996 to June, 1999.

        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
C 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
D 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
E .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.
F In that order, the High Court recorded the undertaking given by
  the respondents that they would abide by order dated
  18.01.2001 passed by it till the trial Court finally dispose of all
  the applications pending before it.

G        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
H appeals from Order Nos. 57 to 61 of 2001 before the High
 BANDEKAR BROTHERS PRIVATE LTD. ETC. v. V.G. 233
      QUENIM & ORS. [P. SATHASIVAM, J.]
Court which were dismissed by the High Court by a common           A
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     B
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        C
Pvt. Ltd., the residential bungalow at No.436, Miramar, Panaji,
Goa and the mining machinery.

    I) On 29.01.2003 the respondent-Company filed a suit for
recovery of money against the appellants.
                                                                   D
    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        E
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.             F

     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              G
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 01.10.2007, the trial
Court allowed the said application for withdrawal.
                                                                   H
    234      SUPREME COURT REPORTS                 [2012] 5 S.C.R.


A      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
B 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
C 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.
D
         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.

       u) Aggrieved by the order dated 06.06.2009, the
E 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 nova consideration
F 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.
G        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
H whether the High Court is justified in remanding the matter to
 BANDEKAR BROTHERS PRIVATE LTD. ETC. v. V.G. 235
      QUENIM & ORS. [P. SATHASIVAM, J.]
the trial Court for de novo consideration of the applications filed   A
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 fact, heard
                                                                      8
arguments on the said applications for a period of 11 days
commencing fror;n 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     C
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         D
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             E
respondents fairly stated that though the respondents have
demolished the bungalow, they have hot 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          F
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        G
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,
                                                                      H
    236       SUPREME COURT REPORTS                [2012] 5 S.C.R.


A 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 ar:id
B 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. Rot;itagi prayed for
  recording of the said undertakings of respondent Nos.6 and 7.
  As far as the sale of iron ore and machinery etc. is concerned,
c 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
D 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
E 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
F 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.

          9. In the light of what is stated above, we dispose of these
  appeals by confirming the order of remand made by the High
G 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.

H N.J.                                        Appeals disposed of.