Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.380 OF 2007

Food Corporation of India … Appellant

Vs.

Sukh Deo Prasad … Respondent

J U D G M E N T

R.V.RAVEENDRAN, J.

The Food Corporation of India (‘FCI’ for short) challenges the

order dated 6.3.2006 of the Allahabad High Court, rejecting its appeal

against the order dated 15.12.2004 passed by the Additional District

Judge (Special judge EC), Jhansi ordering attachment of its properties

under Order 39 Rule 2A of the Code of Civil  Procedure (Code for

short) to an extent of Rs. 1,12,24,792.99.

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Facts of the case :

2. In the year 1976, the respondent (Sukh Deo Prasad) offered to

construct  and  let  out  godowns  to  FCI.  For  that  purpose,  the

respondent and his brother V.K.Shukla obtained a term loan of Rs.10

lakhs  from the  State  Bank  of  India,  Jhansi  Branch  (for  short  ‘the

bank’) on 31.8.1977 and as security therefor mortgaged their land (in

Khard village) and house property (at Jhansi) in favour of the Bank

by deposit  of title  deeds.  The repayment of the said loan was also

guaranteed by one Raj Narain Khare and Shri Kishan on 6.10.1977.

In addition, another sum of Rs.5 lacs was sanctioned by the bank, by

way of term loan to the respondent on 29.8.1977, repayment of which

was guaranteed by one Ram Kishore Gupta and Khachore.

3. Three  godowns  were  constructed  by  the  respondent  and  his

brother and let out to FCI for a term of five years in the year 1978. On

the  instructions  of  the  lessors,  FCI  credited  the  rents  to  the  loan

account of the landlords with the bank. FCI vacated the said godowns

and surrendered back possession in December, 1983.  

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4. The bank filed Suit No.93/1991 (the court of the Special Judge,

E.C. Jhansi) against the respondent (Defendant No.1), the wife and

son of his brother V.K.Shukla (defendants 2 and 3), Raj Narain Khare

(Defendant  No.4  -  guarantor  for  the  loan  of  Rs.10  lacs)  and Ram

Kishore Gupta and Khachore (defendants 5 and 6 -- guarantors for the

loan of Rs.5 lacs) for recovery of Rs.20,68,120.74 with interest at the

rate of 11% with monthly rents, by sale of the mortgaged properties

and for recovery of the balance amount, if any, personally from the

defendants.

5. Defendants  1 to 3 in the suit  contested the claim. They inter

alia  contended  that  the  loan  was  obtained  for  the  purpose  of

constructing  godowns  for  FCI,  that  FCI had agreed to  continue  in

occupation of  those godowns as tenant until the entire loan due by

them (landlords) to the bank was cleared, that FCI had vacated the

godowns prematurely, and that therefore it should be made a party to

the suit and made liable for payment of the suit claim. Issue No.7 was

framed in the suit, as to whether suit was bad for non-joinder of FCI,

and considered as a preliminary issue. By order dated 18.5.1994, the

court directed FCI be impleaded as the seventh defendant in the suit.

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FCI  was  not  given  any  opportunity  to  show  cause  before  being

impleaded.  

6. In  June  1994,  during  the  pendency  of  the  said  suit,  the

respondent and his son Sunil Kumar offered a fresh lease of one of

the three godowns and the appellant took it temporarily on a month to

month  tenancy on  a  rent  of  Rs.0.50  paise  per  sq.  ft.  The tenancy

agreement made it clear that FCI could surrender back the godown

without any notice, whenever the same was not required.

7. On 18.1.1996 the bank filed an application in its suit, seeking

an interim direction to FCI to restrain it from paying the rent for the

said godown to defendants 1 to 3 and for a further interim direction to

FCI to deposit the rents relating to the godown, to the loan account of

defendants  1 to  3  with  the bank.  In the  said  application,  the  bank

averred that FCI had earlier taken the godowns on rent in the year

1978 and had vacated them on the expiry of the lease period of 5

years;  that  in June,  1994,  FCI had again taken on lease one of the

godowns; that inspite of having  agreed that the bank was entitled to

receive  the  rents  from  the  tenant  (FCI),  defendants  1  to  3  were

collecting the rent in respect of the said godown directly from FCI

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with the intention of denying the same to the bank, and that therefore

it was entitled to an interim direction.

8. The  trial  court  allowed  the  said  application  by  order  dated

27.5.1996. It found that when FCI had earlier taken the godowns on

rent for five years, the borrowers had authorized the Bank to receive

the rent with the condition that if the lease was not continued by FCI,

the borrowers would be liable to pay the loan amount from their own

resources. It held that bank was authorized under the loan documents

executed  by  the  borrowers  to  receive  the  rents  in  respect  of  the

mortgaged property  directly  from the tenant.  But  as  the  borrowers

were  disputing  the  amount  of  liability,  it  issued  the  following

directions in regard to the rent for the godown :

(a) FCI  shall  deposit  the  rent  payable  to  defendants  1  and  2 (landlords) up to 31.3.1996 with the Punjab National Bank by way of a fixed deposit in the name of the defendants 1 and 2.

(b) In regard to the rent payable from 1.4.1996, in respect of every 12  months  rent,  2  months  rent  shall  be  paid  directly  to defendants 1 and 2 (towards building maintenance) and balance 10 months’ rent shall  be deposited with plaintiff Bank, to be invested in  the name of the landlords/defendants  1 and 2 by way of MCC periodical deposits.

(c) If FCI failed to deposit the rent as aforesaid, it shall be liable to pay interest @ 13% per annum on the rent defaulted.

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(d) The  amounts  so  deposited  will  be  dealt  with  in  terms  of decision on issue No.10 as to the amount due to the bank, in the final judgment to be rendered.   

9. FCI vacated the said godown taken on rent  in June 1994 on

7.2.1997. Before doing so, it issued a notice dated 31.12.1996 to the

landlords  (respondent  and  his  son)  that  tenancy  would  stand

terminated on expiry of 30 days from the date of service of the said

notice  and  called  upon  them  to  take  possession.  It  informed  the

landlords that it had deposited the rents upto December 1996 in the

Bank in terms of the order dated 27.5.1996 and sent the FD receipt to

the  court.  It  also  issued  a  public  notice  in  the  Daily  Newspaper

‘Dainik Jagran’ dated 18.2.1997 that it had vacated the godown taken

on rent on 18.6.1994, on 7.2.1997.

10. The respondent herein filed an application under Order 39 Rule

2A  of  the  Code  (Contempt  Application  31/1996)  on  6.11.1996

alleging  that  FCI  had  disobeyed  the  order  dated  27.5.1996  and

consequently the District Manager of FCI (Shri Ashraf Ali) should be

sent  to  civil  jail  and  properties  of  FCI  should  be  attached  and

auctioned.  The  said  application  was  dismissed  for  default

on  12.11.1997.  

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11. Thereafter the respondent filed yet another application (Misc.

49/1998) under Order 39 Rule 2A of the Code against FCI, its Senior

Regional Manager and three District managers. In the said application

respondent  prayed  that  action  should  be  taken  against  FCI  and its

officers  for  contempt,  by  seizing  and  auctioning  the  movable  and

immovable  properties  of  FCI  and  by  sending  its  four  officers  to

prison for not depositing the rents in terms of order dated 27.5.1996.

In the said application, the respondent contended that in view of the

interim order dated 27.5.1996, FCI became liable to deposit the rent

for the three godowns from 1.12.1983 till 31.3.1996 and also continue

to pay the rents from 1.4.1996.  The application was resisted by FCI

and its officers.

12. The  trial  court  by  order  dated  15.12.2004  allowed  the  said

application. It interpreted the order dated 27.5.1996 as directing FCI

to  deposit  of  rent  of  three  godowns  from December,  1983  up  to

31.3.1996. Consequently, it held that FCI was liable to pay the said

arrears with interest at 13% per annum. Acting on a calculation sheet

provided by the respondent, it held that a sum of Rs.1,12,24,792.99

was  due  by  FCI  towards  such  rent  and  interest;  and  as  the  said

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amount was not deposited, FCI was liable to be punished under Order

39  Rule  2A  of  the  Code  for  disobedience  of  the  order  dated

27.5.1996.  It therefore directed that the assets of FCI, both movable

and immovable, should be attached under order 39 Rule 2A CPC in

respect of the said sum of Rs.1,12,24,792.99.

13. Feeling aggrieved, FCI filed an appeal (FAFO No. 343/2005)

before  the  Allahabad  High  Court.  The  High  Court  dismissed  the

appeal by a brief order dated 6.3.2006, without prejudice to the rights

of FCI to challenge the order of injunction, with an observation that it

was not competent to consider the validity of the ‘injunction order’ in

an appeal  against  an  order  passed  under  order  39  Rule  2A of  the

Code,  for  disobedience  of  the  ‘injunction  order’.  The  High  Court

assumed that in the appeal against the order dated 15.12.2004 passed

under Order 39 Rule 2A, FCI was trying to challenge the validity of

the ‘injunction order’ dated 27.5.1996. The said order is challenged

by FCI  in this appeal by special leave.  

Questions for decision

14. On  the  contentions  urged,  the  following  questions  arise  for

consideration  :

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(i) What  is  the  purport  and  effect  of  the  order  dated  27.5.1996 described  by  the  trial  court  and  the  High  Court  as  the ‘injunction order’.

(ii) Whether  the  respondent,  who  was  the  first  defendant  in  the mortgage suit filed by the bank, could maintain an application under  order  39  Rule  2A  of  the  Code  for  the  alleged disobedience  by  FCI  (a  co-defendant),  of  the  order  dated 27.5.1996 made in an application filed by the plaintiff bank?

(iii) Whether  the  trial  court  was  justified  in  allowing  such application under Order 39 Rule 2A of the Code, holding that FCI  was  liable  to  pay  the  rents  for  three  godowns  from December, 1983 to 31.3.1996 and interest  thereon and direct attachment  of  the  assets  of  FCI  to  an  extent  of Rs.1,12,24,792.99?

(iv) Whether  the  High  Court  was  justified  in  disposing  of  FCI’s appeal in a summary manner?

 Re : Question (i) :

15. At the outset it should be made clear that we are considering

only the purport and effect of the interim order dated 27.5.1996 and

not  the  correctness  or  validity  of  the  said  order,  as  what  is  under

challenge  is  not  the  order  dated  27.5.1996,  but  the  order  dated

15.12.2004 under Order 39 Rule 2A of the Code holding that FCI had

disobeyed the order dated 27.5.1996.

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16. The order dated 27.5.1996 was passed on an application dated

12.1.1996 filed  by the plaintiff  bank.  It  was  not  filed  either  under

Rule 1 or 2 of Order 39 of the Code. In fact, the application did not

mention the provision of law under which it was filed. The bank did

not claim that FCI had any privity of contract with it, nor claim that

FCI was a co-obligant.  In the application, the bank specifically stated

that the relief sought by it in the said application for deposit of rent

was in regard to the godown belonging to defendants 1 to 3 that was

taken  on  rent  by  FCI  during  June,  1994.  There  is  a  further  clear

averment in the application that FCI had vacated the godowns earlier

taken by it on lease, after the lease period (of 5 years) and that FCI

had again taken one godown on rent during the pendency of the suit

and  that  the  application  related  to  that  godown.  The  order  dated

27.5.1996 did not consider any claim for rent in regard the to three

godowns  which were  vacated  in  December 1983,  nor  consider  the

contention of defendants 1 to 3 in their written statement that FCI had

agreed to continue beyond five years. The court did not hold or direct

that FCI was liable to pay any amount by way of rent or otherwise in

regard  to  the  three  godowns  for  the  period  December,  1983  to

31.3.1996. In fact there was no reference to the three godowns at all

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except  to  the  statement  of  the  bank  that  FCI  had  vacated  those

godowns after the lease period (in December 1983).  The court was of

the  view  that  having  regard  to  the  dispute  raised  by  the

defendants/borrowers in regard to the amount claimed by the bank, it

will not be proper to direct FCI to pay the rents directly to the bank.

As the bank had stated that FCI had not paid the rent for the godown

which it had taken on lease in June, 1994, for non-fulfilment of the

formalities  by the  landlords,  the  court  directed  FCI  to  deposit  the

rents in regard to that godown up to 31.3.1996 and the same be kept

in a fixed deposit with some other nationalized bank. It also directed

that  in  regard  to  the  rent  accruing  in  regard  to  that  godown  from

1.4.1996 from out of rent payable during every year, two months rent

in a year should be paid to defendants 1 and 2 towards repairs and

maintenance and remaining 10 months rent should be deposited with

the bank, for being invested in a MCC deposit. It also directed that in

the event of non-payment of such rent by FCI, it shall pay interest at

13% per annum. Thus there was no application for an ‘injunction’,

nor any order of ‘injunction’ by the court. An interim direction to a

defendant-tenant  in  a  suit  by  the  creditor  against  the

landlords/borrowers,  to  deposit  the  arrears  of  rent  in  court  and  to

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continue the deposit the rents in court with a condition that the tenant

will have to pay interest if the rent was not so deposited, cannot be

considered to be an order of ‘injunction’. In a general sense, though

every order of a court which commands or forbids is an injunction,

but  in  its  accepted  legal  sense,  an injunction  is  a judicial  mandate

operating  in personam by which, upon certain established principles

of equity, a party is required to do or refrain from doing a particular

thing  [see  Howard  C.  Joyce  –  A Treatise  on the  Law relating  to

injunctions (1909) S. 1 at 2-3].  A direction to pay money either by

way of final or interim order, is not considered to be an ‘injunction’

as assumed by the courts below.

17. Admittedly the application dated 12.1.1996, on which the order

dated 27.5.1996 was passed, did not fall under Rule 1 of Order 39 as

the prayer therein did not relate to any of the three matters mentioned

in clauses (a), (b) and (c) of the said rule. It did not also fall under

Rule 2 of Order 39 as admittedly there was no contract between the

bank and FCI nor any allegation that FCI was committing any injury

of any kind to the bank.  Therefore, the order dated 27.5.1996 was not

an order under either Rule 1 or Rule 2 of Order 39 of the Code.  The

suit itself was for recovery of the amounts due by the borrowers, by

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sale  of  the  mortgaged  properties  belonging  to  the  borrowers

(defendants 1    to 3) and to recover the balance personally from the

borrowers  and  guarantors  (defendants  1  to  6).  When  FCI  was

subsequently  added  as  seventh  defendant  at  the  instance  of

defendants  1  to  3,  no  relief  was  sought  against  FCI  nor  was  the

prayers  amended  seeking  any decree  against  FCI.  If  there  was  no

prayer in the suit against FCI, obviously no interim relief could have

been sought against FCI as a defendant.  Even assuming that the final

relief was sought against FCI also, the position is that FCI was only a

‘garnishee defendant’ and not a ‘principal defendant’. The order dated

27.5.1996  was  not  an  injunction  order,  but  an  interim  prohibitory

(garnishee) order by way of attachment before judgment, in regard to

the rents payable for one godown taken by it on lease in June, 1994.   

Re : Question (ii)

18. An  application  under  Order  39,  Rule  2A  of  the  Code  is

maintainable  only  when  there  is  disobedience  of  any  ‘injunction’

granted or other order made under Rule 1 or Rule 2 of Order 39 or

breach of any of the terms on which the injunction was granted or the

order was made. We have  already noticed  that  the  application  by

the bank, on which the said order dated 27.5.1996 was passed, was

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neither under Rule 1 nor under Rule 2 of Order 39 CPC and none of

the  ingredients  required  for  an  application  under  either  Rule  1  or

Rule 2 of Order 39 existed was found in the application by the bank.

As the order dated 27.5.1996 was neither under Rule 1 or 2 of Order

39, the application under Rule 2A of Order 39 was not maintainable.   

19. Even  otherwise,  the  respondent  had  no  locus  to  file  an

application  under  Order  39  Rule  2A alleging  disobedience  of  the

order dated 27.5.1996. The plaintiff bank which filed the application

dated 12.1.1996 on which the said order dated 27.5.1996 was passed,

did not  complain of any disobedience or breach of the order  dated

27.5.1996, nor sought any action or relief against FCI alleging non-

compliance  or  disobedience  of  the  order  dated  27.5.1996.  As  the

interim order dated 27.5.1996 was not made on an application made

by the respondent and as the interim order was not intended for the

benefit to the respondent who was the first defendant in the suit, he

could  not  be  said  to  be  a  person  aggrieved  by  the  alleged

disobedience or breach of the order dated 27.5.1996.  

20. The garnishee proceedings are governed by Rules 46 and 46A

to 46F of Order 21 of the Code.  Sub-para (1) of Rule 46 A provides

that in the case of a debt (other than a debt secured by a mortgage or a

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charge) which has been attached under Rule 46, upon the application

of the attaching creditor, the court may issue notice to the garnishee

liable to pay such debt, calling upon him either to pay into court the

debt due from debtor or to appear and show cause why he should not

do so.  Rule 46B provides that where the garnishee does not forthwith

pay into court the amount due from him to the debtor and does not

appear and show cause in answer to the notice, the court may order

the garnishee to comply with the terms of such notice, and on such

order, execution may issue as though such order were a decree against

him.  Rule 46C provides that where the garnishee disputes liability,

the  court  may  order  that  any  issue  or  question  necessary  for  the

determination of liability shall be tried as if it were an issue in a suit,

and upon the determination of such issue shall  make such order or

orders as it deems fit.  It would thus be seen that the amount due by a

garnishee, if disputed has to be determined as if it was an issue in the

suit  and  the  court  can  appropriate  order  determine  the  extent  of

liability of the garnishee.  In this case, there was no adjudication of

the  amount  payable  by  FCI.   Whatever  amount  that  was  due  in

pursuance  of  the  order  dated  27.5.1996  in  regard  to  one  godown

taken on lease in June 1994, was deposited by FCI and the plaintiff

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bank  at  whose  instance  the  order  was  made  has  no  complaint  or

grievance.  

21. At all events, if a garnishee, or a defendant, who is directed to

pay any sum of money, does not pay the amount, the remedy is to

levy  execution  and  not  in  an  action  for  contempt  or

disobedience/breach under order 39 Rule 2A.  This is evident from

Rule 46B of Order 21 read with Rule 11A of Order 38 of the Code.

Contempt jurisdiction, either under the Contempt of Court Act, 1971,

or under Order 39 Rule 2A of the Code, is not intended to be used for

enforcement  of  money decrees  or  directions/orders  for  payment  of

money.  The  process  and  concept  of  execution  is  different  from

process and concept of action for disobedience/contempt.  

Re : Question (iii)

22. The application dated 12.1.1996 filed by the bank did not claim

or seek a direction for payment of alleged arrears of rent relating to

three  godowns  taken  on  lease  in  the  year  1978  and  vacated  in

December 1983.  In particular, it did not make any claim for rent, for

the  period  December,  1983  to  31.3.1996  when  FCI  was  not  in

occupation of three godown. As noticed above, the bank stated in its

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application that FCI had vacated those godowns after completion of

the lease period (that  is  in December,  1983) and that  subsequently

during the pendency of the suit the appellant had taken one of those

godowns  again  on  rent  in  June,  1994.  The  relief  claimed  in  the

application was that in regard to the godown taken on rent by FCI in

June, 1994, it should be directed to deposit the rents in court as the

borrowers/debtors were attempting to collect the said rent and thereby

deny the benefit of rent to the bank even though the borrowers had

agreed  under  the  loan  documents  that  the  rents  in  regard  to  the

godowns could be directly received by the bank. Therefore when the

application itself was only in regard to the rent for one godown from

June, 1994 onwards, we fail to understand how the trial court could

come to the conclusion that the said order dated 27.5.1996 directed

FCI to deposit the rent for three godowns for the period December,

1983 to  31.3.1996  and that  failure  to  do  so  was punishable  under

Order  39  Rule  2A  of  the  Code.  The  trial  court  by  a  convoluted

reasoning  based  on  a  baseless  interpretation  of  the  order  dated

27.5.1996  held  that  FCI  had  not  placed  any  evidence  in  the

proceedings  under  Order  39 Rule  2A that  it  had  vacated  the three

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godowns in December, 1983 and therefore, it continued to be liable to

pay the rents for three godowns from December 1983 onwards.

23. The obvious question that ought to have been posed is if rents

were  payable  from  December,  1983  onwards  by  FCI,  why  the

respondent as landlord, did not take any action to recover the same;

and if the bank was entitled to receive the said rents, why the bank

did not take action to recover the same. Obviously any claim for rent

against  the  defendant  in  regard  to  any  period  beyond  three  years

would  be  barred  by  limitation,  in  the  absence  of  any

acknowledgement  or  payment  on  account.   It  is  un-understandable

how in a suit filed in the year 1991 by the bank against the borrowers

for enforcement of mortgage, an order made on the bank’s application

for deposit of rents relating to a godown taken by FCI on rent from

the  borrower  in  June,  1994,  can  be  interpreted  by  the  court

considering the application under order 39 Rule 2A of the Code, as

containing a direction for deposit of rents in regard to three godowns

vacated  in  December  1983,  for  the  period  December,  1983  to

31.3.1996.   The absurdity, perversity and arbitrariness of  the order

dated 15.12.2004 becomes evident from the following :  

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(i) FCI is held liable for payment of rent of Rs.1,12,24,792/99 in a

collateral supplemental proceedings under Order 39 Rule 2A of

the  Code,  initiated  by  a  person  who  was  not  a  ‘person

aggrieved’.

(ii) Such liability is created in respect of a time barred claim for

rent by the landlord.

(iii) FCI is made liable for the said sum without the landlords filing

a  suit  for  recovery  of  rents  and  without  adjudication  of  the

claim for such rent;

(iv) Such  liability  is  inferred  by  interpreting  a  garnishee  order

obtained by the landlord’s creditor in regard to a different lease

relating to a different period.  

24. The power exercised by a court under order 39, Rule 2A of the

Code  is  punitive  in  nature,  akin  to  the  power  to  punish  for  civil

contempt under the Contempt of Courts Act, 1971.   The person who

complains of disobedience or breach has to clearly make out beyond

any doubt that there was an injunction or order directing the person

against  whom the  application  is  made,  to  do  or  desist  from doing

some specific thing or act and that there was disobedience or breach

of  such  order.   While  considering  an  application  under  order  39

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Rule  2A,  the  court  cannot  construe  the  order  in  regard  to  which

disobedience/breach  is  alleged,  as  creating  an  obligation  to  do

something  which  is  not  mentioned  in  the  ‘order’,  on  surmises

suspicions  and  inferences.  The  power  under  Rule  2A  should  be

exercised with great caution and responsibility. It is shocking that the

trial  court  had  entertained  an  application  under  Order  39 Rule  2A

from  a  person  who  was  not  entitled  to  file  the  application,  has

accepted an interpretation of the order which does not flow from the

order,  and has created an liability where none existed,  resulting in

attachments of the assets of FCI to an extent of more than Rs.1.12

crores. The order dated 15.12.2004 cannot be supported or sustained

under any circumstances.

Re : Question (iv)

25. FCI filed an appeal contending that the order of the trial court

dated  15.12.2004  under  Order  39,  Rule  2A of  the  Code  directing

attachment  of  its  assets  to  an  extent  of  Rs.  1,12,24,792.99  was

erroneous,  without  jurisdiction  and  liable  to  be  set  aside.   In  that

context it raised contentions about the scope and ambit of the order

dated  27.5.1996.  It  also  incidentally  mentioned  that  the  27.5.1996

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being  a  garnishee  order  was  patently  erroneous  and  without

jurisdiction,  in  a mortgage suit.  The High Court  however assumed

that FCI was not challenging the order dated 15.12.2004 passed by

the trial court under Order 39 Rule 2A but was only challenging the

‘injunction  order’  dated  27.5.1996  for  disobedience  of  which  the

application under Order 39 Rule 2A was filed.  As a consequence, it

dismissed  the  appeal  of  FCI  without  examining  the  several

contentions  raised  by  the  FCI  as  to  the  maintainability  of  the

application under Order 39 Rule 2A or the jurisdiction of  the trial

court to pass such an order under Order 39 Rule 2A and the errors

and perversities pointed out in such order.

26. It is unfortunate that the High Court has failed to even refer to

these aspects and has dismissed the appeal on a wholly baseless and

erroneous assumption that the appellant was trying to challenge only

the  order  dated  27.5.1996,  in  the  appeal  against  the  order  dated

15.12.2004.  We  feel  dismayed  that  when  a  huge  liability  of

Rs.1,12,24,792.99  was  sought  to  be  created  on  the  FCI  in  a

proceedings under Order 39 Rule 2A, the High Court did not even

bother to refer to the facts and merits, and chose to summarily dispose

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of  the  appeal  thereby  allowing  perpetration  of  a  patent  abuse  of

process of court by the respondent.   The travails  of the FCI could

have  been avoided if  the  trial  court  and the  High Court  had  been

diligent to ensure that its process were not misused and abused by the

respondent.

Conclusion

27. We  therefore  allow  this  appeal  with  costs  of  Rs.25,000/-

payable by respondent, set aside the order of the High Court and the

trial court and dismiss the application filed by the respondent under

Order 39 Rule 2A of the Code.  

……………………..J. (R V Raveendran)

New Delhi; …………………….J. March 24, 2009. (Markandey Katju)              

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