TMI Blog2001 (3) TMI 969X X X X Extracts X X X X X X X X Extracts X X X X ..... of Order 39 C.P.C. and, therefore, appeal against the said order would be maintainable in view of the decision of Supreme Court dated 19-9-2000 in CA No. 5102 of 2000 (A. Venkatasubbiah Naidu v. S. Chellappan and Others). 2. The appellant/respondent put in appearance after show cause notice on 4-12-2000. We called for the record of learned Single Judge for 19-12-2000 and on that date noticed that the learned Single Judge had fixed for hearing the application for the vacation of injunction along with another application for 9-1-2001. As such hearing of the appeal was postponed by us to 22-1-2001. On the adjourned date, we were informed that though arguments were to be addressed on the application under Order 39 Rules 1 and 2 but the said application has been adjourned without a date. It was because of the objection raised by learned Counsel for the plaintiff/respondent to the written statement filed by the defendant/appellant to the amended plaint. It was stated at the bar that learned Single Judge had heard the said application moved by the plaintiff for taking off the written statement to the amended plaint from the record. Learned Single Judge had reserved order only on that ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the Customs Authorities for re-export. Necessary permission was granted by the Customs authorities on 25-1-1999 and in the meanwhile, foreign buyer of respondent opened a Letter of Credit on the respondent on 1-2-1999 expiring on 20-3-1999. As per the said letter of credit the last date of shipment was 1-3-1999, which fact was brought to the notice of the appellant. On 15-2-1999 the respondent contacted the appellant on phone, who refused to accept the payment and deliver necessary documents for completing the transaction of sale on high sea sale basis. This led to the plaintiff filing the suit for the following reliefs :- (a) A decree for mandatory injunction in favour of the plaintiff and against the defendant thereby directing the defendant to accept the payment of Rs. 56,00,000/- and to complete the necessary documentation in respect of the transaction for sale of two nos. of machinery/ equipments, namely CAT320 Hydraulic Excavator Model 1998 bearing Serial No. 6CR03234 and 6CR03236 on sale on high seas sale basis/transfer of ownership from bond basis lying in bond of Bombay Customs; (b) A decree for permanent injunction thereby restraining the defendant, their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel for the respondent, customs duty was not payable on bond sales for which respondent had obtained permission. Learned Counsel for the appellant sought adjournment to seek instructions. 8. It appears that there has been no further progress in the case. The appellant s application under Order 39 Rules 1 and 2 C.P.C. for vacation of the ex parte order of injunction (IA.12589/99) came up before the Court on 20-12-1999 on which notice was given to the respondent. When the same came up before the Court on 28-1-2000 time was sought by learned Counsel for the respondent to file reply. Learned Counsel for the appellant also raised the question of maintainability of the said suit filed by the respondent. Short synopsis were filed by learned Counsel for the parties on the application for interim reliefs. The application was posted for consideration on 24-4-2000. Arguments could not be heard on the next two dates. In the meanwhile, the respondent filed an application (IA.4322/2000) seeking amendment to the plaint. The said application came up for consideration on 24-5-2000. It was not opposed on behalf of the appellant. Accordingly, the respondent was permitted to amend the plaint. To ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On the facts and circumstances as pleaded, such a suit would not have been maintainable in view of provisions of Section 58 of the Sale of Goods Act, 1930, which in its turn is subject to the provisions of Chapter II of Specific Relief Act, 1877. Section 58 of the Sale of Goods Act reads :- 58. Specific performance. - Subject to the provisions of Chapter II of the Specific Relief Act, 1877, in any suit for breach of contract to deliver specific or ascertained goods, the Court may, if it thinks fit, on the application of the plaintiff, by its decree direct that the contract shall be performed specifically, without giving the defendant the option of retaining the goods on payment of damages. The decree may be unconditional, or upon such terms and conditions as to damages, payment of the price or otherwise, as the Court may deem just, and the application of the plaintiff may be made at any time before the decree. 12. As per the aforementioned provision only a suit for specific performance could be maintained and that also subject to the provisions of Chapter II of the Specific Relief Act, 1877. Thus the suit as laid when the Court granted ad interim relief was not maintainable. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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