TaxTMI 
TaxTMI 
TaxTMI 
2000 (3) TMI 1130
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....defendants, including Brij Kishore Bhagat, Nawal Kishore Bhagat and Durga Devi Bhagat. The plaintiffs in that suit levied execution in Case No. 18/63 in which warrant for delivery of possession of the disputed premises was issued. In the disputed godown there were racks on which oil seeds were stacked. Inasmuch as the said oil seeds could not be immediately removed, the plaintiffs therein obtained delivery of possession of the godown along with oil seeds stacked in several bags. The said oil seeds were kept in the custody of Sitaram Roy, an officer of the plaintiffs by the process-server of the Court. Thereafter the Bank of India, defendant No. 1 in the suit, filed an application under Order XXI Rule 101 of the Civil Procedure Code (CPC) claiming that the Bank was in possession of the godown as a pledgee of the goods from an alleged partnership firm, namely, M/s, Bansidhar Baijnath and Brij Kishore Bhagat, Durga Devi Bhagat and Nawal Kishore Bhagat, who are stated to be the partners of the said firm, M/s. Bansidhar Baijnath, the firm, also filed an application under Order XXI Rules 100 and 101, CPC claiming to be in possession of the godown on the date of the delivery of the posses....
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....with the goods lying thereon. There were a stock of 3409 bags of Kusum oil seeds in the said godown pledged in favour of defendant No. 1. The godown was kept locked by defendant No. 1 with the locks of superior quality put upon the doors of the said godown with the name of the defendant No. 1 engraved thereon and defendant No. 1 had also affixed a name plate and sign board on the said godown. On January 14, 1972 at about 4 p.m. an employee of the Bank was informed through telephone that padlocks were being broken upon and certain locks were being placed thereon. The agent of the defendant-Bank went to the spot to find that the padlocks fixed to the godown had been removed and they had been replaced by other locks. The name plates of the defendant also had been removed. The agent of the Bank was prevented from entering Into the godown and making Inspection of the pledged goods. A report was also made to the police station on January 14, 1972. It is claimed that defendant No. 1 as pledgee had absolute physical and peaceful possession of the pledged goods in the said godown within the full knowledge of the plaintiffs and thereafter they filed an application under Order XXI Rules 100 a....
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....in possession of the goods and oil seeds in godown kept by the bailiff of the Court in the custody of Sitaram Roy after obtaining the aforesaid delivery of possession of the godown by the plaintiffs, the trial Court answered the same in favour of the plaintiffs to the effect that there can be no dispute on the point that goods and the oil seeds in the godown were kept by the bailiff of the Court in custody of Sitaram Roy, an officer of the plaintiffs, at the time of delivery of possession of the godown. On the question whether these oil seeds belonged to M/s. Bansidhar Baijnath and the partners of the firm, it is held that the goods had been hypothecated to the Bank by M/s. Bansidhar Baijnath which is a partnership firm consisting of partners Brij Kishore Bhagat and Smt. Durga Devi Bhagat and the goods belonged to the Bank of India as holder of security and pledged through the ownership which remained with the partnership firm. The Bank of India as pledgee cannot have any claim on the pledged articles more than money advanced by it. Therefore, the trial Court came to the conclusion that the pledged articles belonged to the partnership firm M/s. Bansidhar Baijnath and the Bank of In....
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....d the problems started because of stocking of a large number of bags containing oil seeds in the said godown and those oil seeds actually belonged to the partnership firm M/s. Bansidhar Baijnath which was a sub-lessee of the said firm. The plaintiffs had impleaded the partners of the said firm in the said suit and those partners are defendants Nos. 2 to 4 in the present suit and they were bound by the decree passed in Title Suit No. 77/59. Their contention that they were not the partners of the said firm had been rejected and they had not come forward to challenge that finding. Though the plaintiffs took khas possession of the godown there were oil seeds in the godown at the time of delivery of possession, the plaintiffs were hardly given any time for the purpose of disposal of the oil seeds because on January 15, 1972, the very next day after the delivery of the possession M/s. Bansidhar Baijnath filed an application under Order XXI Rule 100, CPC for adjudication of their claim to the oil seeds and on the very same day they obtained an injunction restraining the plaintiffs from removing the oil seeds from the godown in question and that interim injunction was made absolute and thu....
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.... keeping their goods therein. In the Title Suit No. 77/ 59 M/s. Bhagat Oil Mills was impleaded as defendant No. 3 being sub-lessee of the disputed premises and Baijnath Bhagat appeared in the said suit as Proprietor of M/s. Bhagat Oil Mills and during the pendency of the said suit, Baijnath Bhagat having died, the defendants Nos. 3 and 4 were substituted in place of the said Baijnath Bhagat. The decree for recovery of possession of the disputed premises was passed in that suit. In those circumstances, defendants Nos. 2 to 4 were bound by the decree of the execution of which the recovery of possession was delivered to the plaintiffs-respondents by the bailiff of the Court. Defendants Nos. 2 to 4 could not claim any right independent of Banshidhar Baijnath and even apart from Section 95, CPC the plaintiffs are entitled to bring an action for recovery of damages for wrongful use and occupation of, the godown in question by defendants Nos. 1 to 4. Section 95, CPC is a specific provision to meet the situation stated therein and it is open to a party to institute an independent suit for damages for unlawful use and occupation of an immovable property if the concerned party can establish ....
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....ful right to use and occupy the said godown and store the oil seeds therein and for such storage of the oil seeds, the plaintiffs have suffered pecuniary loss and damages. After distinguishing the decisions in Bhupendra Nath Chatterjee v. Sm. Trinayani Devi AIR 1944 Cal 289, and Albert Bonnan v. Imperial Tobacco Co. of India Ltd. AIR 1929 PC 222, the High Court agreed with the view expressed by the Karnataka High Court in Basamma v. Peerappa AIR 1982 Kant 9. On that basis the appeals were dismissed. Hence these appeals - one by the Bank and the other by the original lessee of the subtenant of the premises in question who were defendants in the original suit. 6. Two contentions are put forth before us; firstly that S. 95, CPC is a complete code and no suit outside the said provision could, be filed for claiming compensation or damages arising out of an order for temporary injunction obtained on insufficient grounds. The second ground urged is that if the claim of the plaintiff in the suit is based on a cause of action for trespass that inasmuch as the defendants were clothed with a decree of the Court the plaintiff had to plead and prove malice and unless the same is established ....
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....er, a difference between conditions necessary for the maintainability of an application under Section 95, CPC and those necessary to maintain a suit. The regular suit is based on tort for abusing the process of Court. Under the law of torts in a suit for compensation for the tort the plaintiff must not only prove want of reasonable or probable cause of obtaining injunction but also that the defendant was attracted by malice which is an improper motive. 9. In justifying a claim for damages apart from Section 95, CPC, a distinction has to be drawn between acts done without judicial sanction and the acts done under judicial sanction improperly obtained. Proof of malice is not necessary when the property to a stranger, not a party to the suit, is taken in execution but if the plaintiff bringing a suit for malicious legal process is a party to a suit proof of malice is necessary. The plaintiff must prove special damage. The claim of a person for damages for wrongful attachment of property can fall under two heads - (1) trespass and (2) malicious legal process. Where property belonging to a person, not a party to the suit, is wrongly attached, the action is really one grounded on tres....