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M/S FARIDABAD FORGINGS versus M/S INTERNATIONAL CORE OILS LIMITED

High Court of Punjab and Haryana, Chandigarh

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M/s Faridabad Forgings v. M/s International Core Oils Limited - CR-4674-2000 [2006] RD-P&H 6903 (11 September 2006)

CR No.4674 of 2000 1

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

Civil Revision No. 4674 of 2000

Date of Decision: 22.09.2006

M/s Faridabad Forgings

...Petitioner

Vs.

M/s International Core Oils Limited

... Respondent

CORAM Hon'ble Mr.Justice Vinod K.Sharma
Present: Mr.K.S.Dhillon, Advocate,

for the petitioner.

Mr. Lokesh Sinhal, Advocate,

for the respondent.

Vinod K.Sharma, J.

By way of present revision petition, the petitioner had challenged an order passed by the learned Additional Civil Judge (Junior Division), Faridabad, as Executing Court.

The respondent M/s International Core Oils Limited had filed a suit for mandatory and permanent injunction against the petitioner herein which was partly decreed and the learned Trial Court was pleased to order as under:-

" As per my findings on foregoing issues, the suit of CR No.4674 of 2000 2

the plaintiff for mandatory injunction and permanent injunction is partly decree to the effect that the defendant is directed to stop causing high vibrations and noise created by hammer of 3 ton and 5 ton by installing proper vibrations absorbing material around the hammers with strengthening foundation of hammers within six months from the date of this judgment, failing which the defendant is restrained from working or performing drop forging hammers of 3 ton and 5 ton permanently. Remaining claim of the plaintiff is dismissed. Counter claim of the defendant is also dismissed.

Keeping in view the circumstances of the case,both the parties are left to bear their own costs. Decree sheet be prepared accordingly. File be consigned to the record room."

The petitioner thereafter moved an application under Order 21 Rule 32 of the Code of Civil Procedure (for short the Code) for enforcement of the injunction order and the learned Executing Court was pleased to pass an order on 9.9.2000, the operative part whereof reads as under:-

" In compliance of decree dated 24.4.1999, the judgment debtor filed the photo copies of receipts dated 15.5.99, 22.5.99, 19.6.99, 24.6.99, 18.6.99, 26.6.99 respectively regarding the removing and installing the pillor of hammer No.4 and 5. The JD also produced the advise of Rattan Lal consultant Chartered Engineer who inspected the CR No.4674 of 2000 3

foundation of hammer No.H4 capacity 3 ton and H5 capacity 5 ton and made his report that anti-vibration pads and necessary civil works completed at the site but the JD failed to produce the receipt of purchasing the vibration pads and to drill 6" dia bore holes at 5' centre to centre and taking the depth of these bores well below the foundation level that is 30' below the existing ground level, back filling these bore holes with jamuna sand. The decree dated 24.4.99 was passed against the judgment debtor directing the JD to stop causing vibrations and noise created by hammers of 3 ton and 5 ton by installing proper vibration absorbing material around the hammers and strengthening foundation of hammers within six months from the date of judgment, failing which the defendants were restrained from working drop forging hammers of 3 ton and 5 ton permanently. In compliance of the decree, JD failed to reduce the vibration around the hammers with strengthening foundation of hammers within six months and to stop causing high vibrations and noise created by hammers in dispute. The documents placed on file by the JD are not sufficient to establish that the vibrations has stopped by JD. In these circumstances, the JD did not comply the decree dated 24.4.99.So JD is directed to stop the complete working of hammers No.3 ton and 5 ton permanently with immediate effect.

CR No.4674 of 2000 4

On 17.10.2001 this Court was passed to pass the following order:

" After making some submissions, the learned counsel for the parties state that they would be agreeable to appointment of an expert to go to the premises of the petitioner and verify whether still there are any vibrations and if he is of the opinion that the vibrations still exist, he would suggest the ways and means for reducing them, which the petitioner would remove within a month. The learned counsel for the parties seek an adjournment to suggest the name of the expert.

Adjourned to 26.11.2001."

In pursuance to the order passed by this Court, the respondent herein moved CM No.6916-CII of 2002 and gave names of Dr.P.V.Gupta, Mechanical & Electrical Engineer, Former Principal of Thapar Engineering College, Patiala and Dr.B.L.Dhupar Former Professor and Head of Department of Mechanical Engineering, IIT, Kanpur to be appointed as an expert to visit the spot and see the effect of the four hammers of the petitioner on the building of the respondent.

Thereafter, CM No.12951-CII of 2002 was moved by the respondent for vacation of ex parte stay order dated 1.11.2000 vide which the Executing Court was restrained from taking any steps in execution on the next date i.e. 3.11.2000. However, the said application was directed to be heard with the main case. On 16.1.2003, this Court was pleased to order the petitioner to deposit an amount of Rs.50,000/- in favour of the CR No.4674 of 2000 5

Registrar IIT,Delhi within 1 month of the passing of the order with a direction to the Expert to visit the premises after giving notice to both the parties. He was directed to check the vibration as per the judgment and decree. It was further directed that expert would suggest the ways to low down the vibration. The order dated 16.1.2003 reads as under:- " This petition came up for hearing on 17.10.2001 and the following order was passed:-

" After making some submissions, the learned counsel for the parties state that they would be agreeable to appointment of an expert to go to the premises of the petitioner and verify whether still there are any vibrations and if he is of the opinion that the vibrations still exist, he would suggest the ways and means for reducing them,which the petitioner would remove within a month.

The learned counsel for the parties seek an adjournment to suggest the name of the expert.

Adjourned to 26.11.2001."

The petition came up for hearing on 24.10.2002 and the following order was passed:-

"Counsel has suggested that a team of Professors from Indian Institute of Technology, Delhi, should visit the factory to assess the vibrations and to suggest its remedial measures, so that the vibrations are within the permissible limits.

For reply and consideration, to come up on 21.11.2002."

CR No.4674 of 2000 6

Counsel for the petitioner has placed on record a letter dated 21.10.2002 issued by Dr.S.N.Sinha, Professor & Head, Civil Engineering Department, India Institute of Technology, Delhi to the address of the petitioner showing that in case Rs.50,000/- is deposited by draft in favour of Registrar, IIT, Delhi, then they will provide consultancy services for the assessment of the vibration in the factory of the petitioner and its remedial measures.

Counsel for the respondent has made a statement that the respondent has no objection for the appointment of an expert from I.I.T., New Delhi, in case, the fee is paid by the petitioner. The counsel for the petitioner has stated that the petitioner will pay the fee.

Accordingly, it is ordered that the petitioner will deposit an amount of Rs.50,000/- in favour of the Registrar, IIT, Delhi within one month from today. The expert will visit the premises after giving notice to both the parties.

While visiting the premises of the petitioner, he will see the work of all the five hammers simultaneously and see its effect and, thereafter, see the effect of four hammers and then that of two hammers and at last see the effect of one hammer. He shall also check the vibration as per the judgment and decree. The expert will also suggest the way to low down the vibration.

In case, the petitioner did not deposit the fee as settled, this revision petition shall stand dismissed. Now to CR No.4674 of 2000 7

come up on 28.04.2003 for the report of the expert." Thereafter, the respondent moved CM No.19581-CII of 2003 seeking directions to comply with the order dated 16.1.2003 with a further prayer that in case the petitioner failed to comply with the order dated 16.1.2003 the interim order be got vacated. The petitioner is said to have complied with the said order and deposited the amount and in pursuance thereto Dr. S.N.Sinha, Professor, Civil Engineering Department of IIT, Delhi filed his report on 20.9.2004. Dr. S.N.Sinha submitted his report on 12.5.2004 mentioning therein that remedial measures are required to reduce the vibration within acceptable limits. In this report it was also suggested that the petitioner shall be required to make trench along the boundary wall so that vibration is not transmitted across the boundary wall. The depth of trench was suggested to be about a meter below the level of foundation of Hammer-II which is nearer the wall. The width of trench could be 0.5 meter. The trench was further directed to be filled with compressible material which shall absorb the vibration and prevent from its transmission and after the remedial measures are taken, vibration test was required to be done again to ensure its effectiveness.

This Court thereafter on 23.12.2005 was pleased to grant 4 months' time to take remedial measures as suggested by the expert. Order dated 23.12.2005 reads as under:-

" Mr.Dadwal submits that the report dated 12.5.2004 submitted by Dr.S.N.Sinha, Professor, Civil Engineering, Department of Indian Institute of Technology, Delhi, in compliance to the order dated 16.1.2003 is acceptable. He CR No.4674 of 2000 8

submits that he would comply with the report and submit his compliance report within four months.

List for hearing on 2.,5.2006."

Thereafter, by way of CM No.8879-CII of 2006, the petitioner sought extension of one month's time for completion of the work and to comply with the order dated 23.12.2005. Thereafter, the petitioner filed CM No.11789-CII of 2006 for placing on record the compliance report stating therein that all remedial measures as per the report of Dr.S.N.Sinha, Professor, IIT, Delhi have been complied with. The petitioner was allowed to place the said affidavit on record.

The respondent thereafter moved CM No.13887-CII of 2006 and filed objections against the compliance report. The said application was allowed and objections were taken on record. The respondent raised the following objections against the compliance report:- "(i) That the petitioner has enclosed some vouchers showing that some payment was made to one Rattan Singh Saini which does not show at all as to what work has been got done by the petitioner in compliance of report dated 12.5.2004 submitted by Dr.S.K.Sinha, Prof. ITI, However, it is submitted that removal of vibration of all the hammers installed by the petitioner as suggested by Dr.S.K.Sinha is a specialized job and can be done under the supervision of some expert only.

(ii) That it is also not out of place to mention here that CR No.4674 of 2000 9

the petitioner wrote a letter dated 13.3.2006 to the respondent to visit the site to inspect the work being done.

It may be respectfully submitted here that Shri Sudhir Pal s/o Shri Satya Pal, the Managing Director of the respondent company visited the site and he was shown some digging of trenches and he was asked to visit again to see the further progress. However, when Mr. Sudhir Pal went again to inspect, he was not allowed to go inside on the ground that Mr.K.K.Singhal, the Managing Director of the petitioner company was not there. Mr. Sudhir Pal told the persons present there that whenever Mr.Singhal comes, he may be informed. However, no information was received from the petitioner and none from the respondent side was able to see as to what work has been carried out by the petitioner.

(iii) That so far as vibration being caused by the running hammers of the petitioner company are concerned, no improvement has been made in the same. The level of vibration and the noise has rather been increased.

(iv) That since remedial measures have been suggested by Dr.S.K.Sinha after inspecting the site and running of hammer, it will be in the interest of justice that a fresh report may be sought by directing Dr.S.K.Sinha to visit the site and to see what remedial measures have been taken by the petitioner. It may also be submitted here that the report with regard to vibration and noise level be sought after directing the petitioner to run all the five hammers CR No.4674 of 2000 10

simultaneously as was directed earlier by Hon'ble Mr.Justice Nirmal Singh on 16.1.2003 while seeking the report from Dr.S.K.Sinha and since the vibration and noise level has increased manifold in the interest of justice and fitness of things that the petitioner maybe directed to close all the five hammers till all the defects are removed as suggested by Dr.S.K.Sinha."

The petitioner, thereafter, has placed on record the report on Measurement of Mechanical Vibrations on Production Shop Floor by Josts to contend that the order passed by this Court stands complied with.

However, the learned counsel for the respondent disputes the report and submitted that in fact, the vibration has increased and the petitioner has failed to comply with the remedial measures as suggested by the expert.

Keeping in view the technical nature of the case and different stands taken by the parties, both the parties were directed to give names of experts who could give their opinion on the matter in dispute. In pursuance to the order passed by this Court, learned counsel for the respondent has given the names of Dr.K.Mohan, Director General, National Council of Cement & Building Material, Sector 4, Ballabgarh, District Faridabad and Engineer and Shri Shiban Raina, Retired Director General, National Council of Cement & Building Material, resident of House No.2067, Sector-9, Faridabad.

On the other hand, learned counsel for the petitioner has given the names of Shri Rattan Lal, office at 758, Sector 7 , Faridabad and CR No.4674 of 2000 11

Dr.Ishwar Chander Syal, retired, Professor & Head of Department of Civil Engineering, Punjab Engineering College,Chandigarh.

Keeping in view the conflicting stands I think it appropriate that one expert each from the lists submitted by the parties should be appointed to check the level of vibration and noise and to see as to whether the order passed by the Civil Court stands complied with or not.

Accordingly, Dr.K.K.Mohan and Shri Rattan Lal, above mentioned, are appointed as experts to inspect the factory of the petitioner after notice to the parties and check the level of vibration and noise and to see whether they are within the permissible limit and that the order passed by the Civil Court referred to above stands complied with or not.

The fee payable to respective experts shall be borne by the respective parties.

In case the experts find that the order of the civil court has not been complied with in totality and certain remedial measures are still required to be taken they may mention the same and petitioner be given minimum permissible time to take those remedial measures. In case in spite of directions issued by the experts the petitioner fails to comply with the suggestion and implement the order in totality or in case there is any dispute with regard to the measurement undertaken it would be open to respective parties to move the Executing Court for appropriate order for implementation of order of injunction.

The revision stands disposed of.

(Vinod K.Sharma)

September 22,2006 Judge

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Copyright

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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