9911796707
TMI Blog1994 (7) TMI 352X X X X Extracts X X X X X X X X Extracts X X X X ..... -Judge, Chandigarh. Simultaneously, appellants sought an injunction under Rules 1 and 2, Order 39 C.P.C. The averments in the plaint were that the plaintiff-appellant M/s. Subhagya Agencies was a firm of partners and had been appointed by the respondent - M/s. Balsara Hygiene Products Ltd. - as the latter's clearing and forwarding agents for the respondent's products, such as, tooth- pastes, tooth-powder, tooth-brushes, mosquito-repellents, cleaning powders, toilet fresheners etc. under terms of an agreement said to be executed on 1st April, 1985 stipulating a commission at the rate of 1.5% upto a turnover of ₹ 2 crores and 1% in respect of turnover in excess thereof. Appellants further pleaded that there were, allegedly, certain renewals, revisions and updating of these arrangements from time to time whereunder large sums by way of commission fell due and remained unpaid. It was also alleged that the purported termination of the arrangements by the respondent under letter dated 15th February, 1989 was invalid. On these and other allegations the appellants sought a declaration of the appellants' lien to the extent of ₹ 15,80,861.85 over the goods of the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e liability of the suit for such dismissal on the ground of non-registration of the partnership. 4. The further question that arose before the learned Single Judge of the High Court who tried the suit was whether, in view of the fact that under the directions and orders of the court dated 27th March, 1989 and 29th April, 1989, the appellants had disposed of the goods, the respondent was entitled to restitution of the stocks or their money-value by way of restitution. The learned Single Judge noticed the two questions that arose before him, thus : Two questions arise in this suit. The first one being whether the suit is liable to be dismissed in view of Section 69 of the Indian Partnership Act, partnership being unregistered on the date of filing of the suit and in case the suit is to be dismissed, the second question would be whether the parties are to be relegated to the original situation prevailing on March 27, 1989. 5. On the first question, the learned Single Judge observed : ...Insofar as the first point is concerned, Mr. Sahai, learned Counsel for the plaintiff fairly conceded that the suit is liable to be dismissed as the partnership was not registered on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... more than what is made out by them. Out of the said amount a sum of ₹ 7 lakhs stands paid by the plaintiffs to the defendant. Now the question that arises is whether the plaintiffs can be directed to pay the remaining sum of ₹ 25.40 lakhs to the defendant. If not, what is the other course open to secure the interest of the defendant. 7. It was urged by the respondent before the High Court that at least the amount of ₹ 25,40,000 (i.e. ₹ 32,40,000 less ₹ 7,00,000 paid) should be directed to be said to the respondent on the ground that the appellants were merely a clearing and forwarding agent and had no right to sell the goods and to appropriate the sale proceeds. It was urged that the possession was really that of the principal, i.e. the respondent and the sale proceeds should be directed to be paid over to the respondent by way of restitution. Learned Single Judge rejected this prayer for payment. Learned Single Judge noticed that the goods were in the possession of the appellants and that the limited question that fell for consideration was whether the appellants should be directed to furnish sufficient and satisfactory security for the value of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty who has suffered as a consequence thereof remains seething with pain of injustice even when the order is knocked down ? Healing touch in such a case is a must. The stain of injustice must be removed, at least bleached if it is not possible to totally eradicate it. In the present case, at least the money value of the goods which have been sold by the plaintiffs should be secured and available in the event of the plaintiffs failure to establish their lien in a suit which Mr. Sahai, learned Counsel for the plaintiffs says has been instituted by them in a court at Chandigarh or in any other appropriate proceedings which the parties may institute within the time imperative prescribed by law. xxxx xxxx xxxx There is no higher principle for the guidance of the court than the one that no act of courts should harm a litigant and it is the bounden duty of courts to see that if a person is harmed by a mistake of the court he should be restored to the position he would have occupied but for that mistake.... On the question whether Section 144 in terms applied to the present case or not, the learned Judge observed : ...But in a case where a party was not in possession but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intention of the legislature. The following passage in the said pronouncement of the Code was relied upon : ...It is also well recognised that the inherent power is not to be exercised in a manner which will be contrary to or different from the procedure expressly provided in the Code. The question for determination is whether the impugned order of the Additional Munsif appointing Sri Raghubir Pershad Commissioner for seizing the plaintiff's books of account can be said to be an order which is passed by the Court in the exercise of its inherent powers. The inherent powers saved by Section 151 of the Code are with respect to the procedure to be followed by the Court in deciding the cause before it. These powers are not powers over the substantive rights which any litigant possesses. Specific powers have to be conferred on the Courts for passing such orders which would affect such rights of a party. Such powers cannot come within the scope of inherent powers of the Court in the matters of procedure, which powers have their source in the Court possessing all the essential powers to regulate its practice and procedure. [P.887] Sri Grover contended that Section 151 can b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 13. The Law of Restitution encompasses all claims founded upon the principle of unjust enrichment. 'Restitutionary claims are to be found in equity as well as at law'. Restitutionary law has many branches. The law of quasi-contract is that part of restitution which stems from the common Inebriates counts for money had and received and for money paid, and from quantum meruit and quantum vale bat claims. [See 'The Law of Restitution - Goff Jones, 4th Edn. Page 3]. Halsburys Law of England, 4th Edn. Page 434 states : Common Law. Any civilised system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is, to prevent a man from retaining the money of, or some benefit derived from, another which it is against conscience that he should keep. Such remedies in English law are generically different from remedies in contract or in tort, and are now recognised to fall within a third category of the common law which has been called quasi contract or restitution. For historical reasons, quasi contract has traditionally been treated as part of, or together with, the law of contract. Yet independently, equity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts erroneous action had displaced them from.... 15. Section 144 CPC incorporates only a part of the general law of restitution. It is not exhaustive. (See Gangadhar and Ors. v. Raghubar Dayal and Ors. F.B. and State Govt. of Andhra Pradesh v. Manickchand Jeevraj Co. Bombay . The jurisdiction to make restitution is inherent in every court and will be exercised whenever the justice of the case demands. It will be exercised under inherent powers where the case did not strictly fall within the ambit of Section 144. Section 144 opens with the words Where and in so far as a decree or an order is varied or reversed in any appeal, revision or other proceeding or is set aside or modified in any suit instituted for the purpose,... The instant case may not strictly fall within the terms of Section 144; but the aggrieved party in such a case can appeal to the larger and general powers of restitution inherent in every court. We have considered this submission of Sri Grover relying on Sakamma v. Eregowda [1974] 2 KLJ 357 that the mere fact that the suit for permanent injunction was dismissed resulting in the vacation of the interim order of injunction granted during its pendency, w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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