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SAHARA INDIA COMMAND OFFICE THRU' DY. MANAGING WORKER & ORS. versus A.D.J. & OTHERS

High Court of Judicature at Allahabad

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Sahara India Command Office Thru' Dy. Managing Worker & Ors. v. A.D.J. & Others - WRIT - C No. 54976 of 2005 [2007] RD-AH 1985 (7 February 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

      COURT NO.6

Civil Misc. Writ Petition No.54976 of 2005

Sahara India Command Office,

Sahara  India Bhawan and others............................................Petitioner

Vs.

The Additional District Judge-II,

Deoria and others............................................................Respondents.

*****

Hon.Tarun Agarwala, J.

Heard Sri Shakti Swaroop Nigam, the learned counsel for the petitioner and Sri Khurshid Alam, the learned counsel for respondent No.3.

The plaintiff-resondent No.3 was working as Chief Field Manager in the petitioner Company and during the course of his employment took a loan. It transpires that a Maruti vehicle was given to the plaintiff and a sum of Rs.2395/- was required to be paid by the plaintiff to the Company in 120 monthly instalments. The plaintiff alleged that the cost of the vehicle was approximately Rs.2,10,000/- and that a sum of Rs.1,77,230/- was paid by way of instalments from the commission that he earned from the Company. The plaintiff left the services of the Company and, it is alleged, that the company initially requested the plaintiff to return the vehicle and thereafter forcibly tried to take the vehicle from the plaintiff. This resulted in the filing of the Original Suit No.250 of  2002 praying for a permanent injunction retraining the defendants-petitioners from forcibly taking the vehicle in question.  In paragraph 14 of the plaint it was also alleged that the defendants had to pay a sum of Rs.6 lacs towards the commission accrued in favour of the plaintiff and another sum of Rs.1 lac towards fund (probably meaning Provident Fund). It was also alleged that the plaintiff reserved his right to recover the said amount through a separate suit.

The trial court after hearing the parties granted a temporary injunction restraining the defendants from forcibly taking the vehicle given to the plaintiff. The trial court further injuncted the defendants to pay the commission to the plaintiff. Aggrieved the defendants filed a Misc. Appeal under Order 43 Rule 1(r) of the C.P.C. which was dismissed. Consequently, the writ petition.

The learned counsel for the petitioners submitted that admittedly the vehicle was registered in the name of the owner, namely, the petitioner and therefore, no injunction could be granted against a registered owner for the recovery of its vehicle. Further, the trial court committed an error in issuing an injunction for payment of commission which direction could not have been given since no relief for payment of commission was prayed by the plaintiff in the suit. Quite apart from the aforesaid, the learned counsel  for the petitioners submitted at the Bar that the plaintiff had already filed another suit No.408 of 2003 for the recovery of the commission from the petitioners. Apart from the aforesaid, the learned counsel for the petitioners submitted that a lease agreement dated 7.1.1997 was executed between the petitioners and the plaintiff wherein the plaintiff had agreed to pay a sum of Rs.2395/- per month in 120 instalments. The said agreement further stipulated that the vehicle would be transferred in favour of the plaintiff only upon the payment of the last instalment and that, if the plaintiff left the services of the Company, he would be required to surrender the vehicle. The said agreement also contained an arbitration clause and, in view of the arbitration clause, the learned counsel submitted that the suit was not maintainable and that no relief for injunction could be granted.

I have heard the learned counsel for the petitioners and the learned counsel for the respondents.

From a perusal of the objection filed by the petitioners against the application for grant of temporary injunction and from a perusal of  the written statement filed by the defendants, I find, that no averment has been made with regard to the execution of the agreement dated 7.1.1997 between the petitioners and the plaintiff. Consequently while considering the application for grant of temporary injunction and the orders passed by the courts below, this Court is not inclined to consider or look into the alleged agreement, which at the moment, does not appear to be part of the record of the suit. Admittedly, the plaintiff took a loan and was required to pay the loan. The question whether the instalment was paid from his commission  or not is a question of fact, which would be adjudicated after evidence is led. The trial court has given a finding that from the documents filed by the petitioners, a sum of Rs.11,374/- remained in balance towards the repayment of the loan.

The petitioners may be the owner of the vehicle but cannot take forcible possession of the vehicle from its employee or ex-employee. It can only take possession by taking recourse to the procedure involved under a statute but cannot take the law in its own hands. Consequently, even though the petitioners are the registered owner of the vehicle in question, nonetheless, the trial court was justified in restraining the petitioners from recovering the vehicle by forceful means. No interference in the temporary injunction is required in this regard. However, this Court finds that a sum of Rs.11,374/- was still required to be paid by the plaintiff as held by the trial court in its order. Consequently, the plaintiff is therefore, directed to deposit this amount of Rs.11374/- within four weeks from today before the trial court. The amount so deposited can be withdrawn by the petitioner. In so far as the direction for the payment of commission is concerned, this Court finds that the order of the trial court directing the defendants to pay the commission was absolutely without jurisdiction. The trial court had exceeded its jurisdiction in granting this injunction. Paragraph 14 of the plaint is clear and explicit. The plaintiff himself stated that he reserved his right to file a separate suit for the recovery of the commission. The relief of the recovery of the commission  was not claimed by the plaintiff in the present suit. Consequently, the direction of the trial court to the defendants to pay the commission, without any adjudication on it, as an interim measure was patently without jurisdiction. This part of the order cannot be sustained and is quashed.

In view of the aforesaid, the order of the trial court is partly modified. The writ petition is allowed. The injunction will only be operative to the extent that the petitioners are restrained from forcibly taking possession of the vehicle from the plaintiff provided the plaintiff deposits a sum of Rs.11,374/- within four weeks from today.  The amount so deposited can be withdrawn by the defendants/petitioner..

Dated:7.2.2007

AKJ


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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