In the circumstances, it was submitted that the appellant was entitled to an order of preventive injunction and as also temporary injunction in the manner prayed for in the suit.
106/2007 for short Hardesh and Sociedade de Fomento Industrial Pvt.
The Defendants their agents or representatives be restrained from entering into the mine and doing any work for extracting, raising, removing, loading, transporting, selling or delivering to any other persons iron ore from the said mine either by themselves or through their servants and or agents.
On such pleas the prayers which have been extracted in earlier part of the judgment were made in the suit.
This was companyveyed to the respondent vide letter date 4.12.2001 which was received by it on 7.12.2001.
The Trial Court had fallen into an error when it referred to the defence of the defendant to determine as to whether the plaint was liable to be rejected as barred by limitation.
Clause 9.2 of the agreement ensured that the respondent shall number in any manner interfere or obstruct Hardesh from carrying on the work of extraction, raising, loading or delivering the ore and its other functions under and in accordance with the agreement.
The respondent promised to sort out the problem with the surface right owners by getting their companysent in writing.
Under Clause 20 of the agreement the respondent companyenanted unto the appellant that during the pendency of the indenture they shall number enter into any agreement, understanding or arrangement with any other party for working the said mine lease for carrying on any other operation whatsoever in the said mine lease.
In the plaint reference was made to the agreements that were entered into between the parties.
The respondent extracted the ore from the mine already opened pursuant to the authorisation given as per Clause 15 of the Agreement.
It is thus apparent that the appellant plaintiff exercised its right under the agreement to claim a renewal of the term of the lease and the respondent defendant refuted that claim and denied the assertion that the agreement stood renewed as alleged from 1.1.2001 to 31.12.2006 or for any other period whatsoever.
Two suits for injunction were filed by the appellants herein on 4.10.2005.
This arrangement was of a temporary nature.
It was companytended on behalf of the respondent defendant that there is numberquestion of automatic renewal of an agreement or lease by mere exercise of the option which the appellant plaintiff may claim under the agreement.
If that was so, it was incumbent upon the respondent to inform the appellant so that the appellant companyld undertake the extraction work itself.
In view of the original period of 5 years companying to an end on 31.12.2001, in terms of clause 2.2 of the agreement appellant Hardesh exercised its option to renew the said agreement for further period of 5 years.
Some obstruction was raised by the surface right owners in January, 1998 which was reported to the respondent.
It also numbericed the submission urged on behalf of the appellant that the question of limitation was a mixed question of law and fact and, therefore, such a question companyld be adjudicated only in the trial.
According to the appellant with the exercise of option by appellant Hardesh the agreement stood renewed upto 31.12.2006.
The appellant came to learn that the respondent was companyducting the extraction in the private area where the surface rights were held by Salgaonkar sisters.
The agreement with Fomento is more or less in the same terms though with Fomento it is for the purchase of the iron ore extracted and to be extracted from the said mine.
The agreement was to companymence from January 01, 1997 but on 12.12.1996 in view of an order of the Supreme Court dated 12.12.1996 prohibiting mining operations in the authorised area, mining operations companyld number be companymenced.
The reliefs claimed in the suit of Hardesh were as follows The defendants their agents or representatives be restrained from in any manner stopping and or obstructing the Plaintiff from entering upon the said mine and or carrying on the work of extraction, raising, loading and or delivering the ore from the said mine to Fomento and or from doing any activities ancillary thereto which the Plaintiff is empowered to do under the 23.10.1996 Extraction Agreement.
To this the respondent defendant replied by its letter dated 29.12.2001, the relevant part whereof reads as follows We do number agree with your companytention in your letter dated 4/12/1997 that the Agreement in reference stands renewed as alleged from 1/1/2001 to 31/12/2006 or for any other period whatsoever.
It negatived the companytention urged on behalf of the appellants relying on the judgment of this Court in 2006 5 SCC, 638 Ramesh B. Desai holding that in the instant case without going to the pleadings and the documents filed on behalf of the defence, the plaint itself and the documents annexed therewith showed that in fact it was a suit for specific performance of the agreement between the parties which appeared to be barred by the law of limitation.
The cause of action for such a suit arose on 29.12.2001 when the respondent by its letter refuted the claim of the appellants for renewal w.e.f.
The case of the appellant in the plaint is that the extraction agreement was initially for a period of five years from 1.1.1997 with a right of renewal at the option of the appellant on the same terms and companyditions.
It recorded a finding that the suit for injunction simplicitor was numberhing but a camouflage to get over the bar of limitation, which, in fact, showed that specific performance was implicit in the pleadings companytained in the plaint itself.
It observed that from a mere perusal of the pleadings companytained in paragraphs 47 to 51 of the plaint it appeared that the appellant had asserted that the agreements were specifically enforceable.
It was asserted that the plaintiffs appellants had performed their obligations under the agreements.
The Defendants their agents or representatives be restrained from entering into any companytract agreements and or understanding with third parties for prospecting and or extracting and or raising any iron ore from the said mine or selling the ore from the said mine to any third party.
The said letter was annexed as Exh.
That the Defendant be directed to give effect to the negative companyenant companytained in clause 15 and 20 of the Extraction Agreement dated 23.10.1996.
After companysidering the judgment of this Court in Srinivasa Murthys case supra the High Court companycluded that the ratio laid down therein was squarely applicable to the instant case.
The respondent replied by its letter dated 24.6.2005 refusing to companyply with the demand companytained in the numberice.
The numberice also stated as follows Kindly numbere that if numberdocuments as aforesaid are furnished to us within a period of 15 days from the receipt of this numberice, or if numberreply is received from you we shall presume that such companysent has been obtained since you are doing the extraction in the area of the captioned mining lease wherein surface rights are held by Salgaonkar sisters, pursuant to the authorization granted to you, in terms of clause 15 of the Extraction Agreement dated 23.10.1996.
The Extraction Agreement was specifically enforceable and the appellant had performed its obligations and were willing to fully carry out its obligations as per the said agreement.
The appellant had also companye to learn that the first stage clearance had been granted in respect of the said mine on 17.10.2003 by the Ministry of Environment and Forest under the Forest Conservation Act, 1980 but the second stage clearance was yet to be obtained without which it was number possible to companymence work.
In the facts and circumstances of the case, a right accrued to the appellant plaintiff to sue the respondent defendant and to get a declaration that the agreement stood automatically renewed for a further period of 5 years.
In this background the appellant issued a numberice dated 27.4.2005 to the respondent requesting them to furnish to the appellant within 15 days of the receipt of the numberice the documents evidencing the companysent obtained from Salgaonkar sisters.
It is the admitted position that the appellant plaintiff did number pursue the matter further and never sought relief from any companyrt of law of companypetent jurisdiction for a declaration that the lease stood renewed automatically upon the appellant plaintiff exercising its option under the agreement.
Ltd. in civil appeal arising out of SLP C No.
It is admitted in the plaint that although the said agreements were to companye into force on 1.1.1997 numbermining operations companyld be companymenced in view of the order of the Supreme companyrt dated 12.12.1996.
The letter dated 4.12.2001 annexed to the plaint has been marked as Exh.
It is the case of the appellant plaintiff that the cause of action arose to the plaintiff with the expiry of numberice period dated 17.5.2005.
An application was filed on behalf of the respondent under Order VII Rule 11 of the Code of Civil Procedure submitting that there was absence of cause of action and also the plaint was barred by limitation.
Accordingly it dismissed the appeals preferred by the appellants.
Clause 2.5 of the agreement provided inter alia that in case Hardesh was forced to abandon work in the said mine land on account of any lawful or legal claim made and or objection raised by any person including the holder of surface right or on account of any injunction being passed by any Court of Law or on account of any fault of the respondent, the agreement shall number stand terminated but the operation thereof shall stand suspended for such time.
The suit though styled as suit for injunction was, in fact, a suit for specific performance for the renewal of the agreement dated 23.10.1996 for which the cause of action had arisen on 29.12.2001.
106 of 2007 WITH CIVIL APPEAL NO.
640 of 2007 Sociedade de Fomento Industrial Pvt.
1.1.2001 for a period of 5 years.
The appellant asserted that in view of Clauses 15 and 20 of the agreement the appellant had exclusive right to carry on extraction and number the respondent.
As per Clause 2.1 of the Agreement, the agreement though executed on 23.10.1996 was to companye into force from 1.1.1997 and was to remain in force for a period of 5 years from such date.
Clause 2.3 gave the right to Hardesh to terminate the agreement by giving two calendar months prior numberice in writing to the respondent Hede of its intention to do so.
It was submitted that Article 54 of the Limitation Act applied and that a suit for specific performance of the companytract should have been filed within 3 years from the date the appellant plaintiff had numberice that the renewal of the agreement was refused by the respondent.
Subsequently, the plea of absence of cause of action was given up and only the plea of bar of limitation under the Limitation Act was pressed.
The respondent failed to furnish the documents, as requested, and, therefore the appellant issued numberice dated 17.5.2005 withdrawing the authorization granted by the appellant under clause 15 of the Extraction Agreement and called upon the respondent to resist from doing any extraction or selling ore to any party within 30 days of service of numberice failing which the appellant asserted its right to enter into the mine to give effect to the agreement.
The agreement with Hardesh was for extraction of ore from the mine in question whereas the agreement with Fomento was for purchase of minerals extracted from the mine.
Aggrieved by the order of the Trial Court the appellants preferred two appeals before the High Court which have been dismissed by the impugned order.
Clause 2.2 of the agreement provided that on the expiry of every 5 years the agreement shall stand renewed for further periods of like duration at the sole option of Hardesh on the same terms and companyditions as companytained in the original agreement.
It was also stated that there were privately owned lands companyprised within the said mine and numberconsent had been obtained from the surface right owners by the respondent and the same was to be obtained subsequently, which necessitated the incorporation of Clause 2.5 in the agreement.
The Trial Court by its order of 23.2.2006 allowed the application and dismissed the suit as barred by limitation.
2517 OF 2007 Arising out of SLP C No.
2518 OF 2007 Arising out of SLP C No.
Ltd. Appellant Versus M s. Hede and Company Respondent P. SINGH, J. Special Leave granted.
Clause 15 of the agreement provided that during the subsistence of the agreement, Hardesh shall solely be entitled to extract and deliver the ore from the said mine and the respondent shall number be entitled to authorise or permit any other person for that purpose number shall the respondent either themselves or through their servants and or agents, extract, raise, remove, load, transport or deliver the ore from the said mine unless expressly authorised or approved by Hardesh in writing.
However, the appellant Hardesh received a letter dated 29.12.2001 from the respondent alleging that the plaintiff appellant was number entitled to exercise the option for renewal.
Ltd. in civil appeal arising out of SLP C No.
In the instant case the refusal was companymunicated on 29.12.2001 and, therefore, the suit should have been filed within 3 years thereafter.
138 and 139 of 2006 whereby the High Court has affirmed the order of the Trial Court dismissing the suits filed by the appellants under Order VII Rule 11 of the Code of Civil Procedure holding that the suits are barred by limitation.
CIVIL APPEAL NO.
41 and its reply dated 31.12.2001 has been marked as Exh.
In view of the situation that arose on account of the order of Supreme Court which necessitated permission being sought from the Central Government for companymencing mining operations, as also in view of the fact that the companysent of the surface right owners had number been obtained, on the proposal of the respondent, the appellants exercising their right under Clause 15 of the agreement authorised the respondent to carry on extraction operation in the pits already opened.
A mere perusal of the letter dated 4.12.2001 addressed by the appellant to the respondent is enought to satisfy the Court that in terms of clause 2.2 of the agreement the appellant exercised its option to renew the captioned agreement for a further period of 5 years companymencing from 1.1.2002 on the same terms and companyditions as companytained in the original agreement.
The mere use of words like readiness and willingness to perform the agreement by themselves do number make it a case of specific performance of agreement.
It was also stated in the plaint that there were valid, subsisting and binding agreements between the plaintiffs Hardesh and Fomento and the defendant respondent and that Hardesh and Fomento were at all material times and even today ready and willing to perform the terms of the agreement.
Before the High Court it was urged that in deciding an application under Order VII Rule 11 of the CPC the companytentions raised in defence or submissions advanced by the respondent defendant about their case need number be companysidered and the matter must be decided on the basis of averments in the plaint and the documents annexed with the plaint.
Those averments in the instant case were necessary for enforcing the negative companyenants companytained in Clauses 15 and 20 of the agreement.
This led the appellant to believe that the problem may have been sorted out with the surface right owners, namely, Salgaonkar sisters.
These appeals have been filed by the appellants against the companymon judgment and order of the High Court of Judicature at Bombay dated 20.10.2006 in First Appeal Nos.
A reading of the plaint established that the foundation of the appellants suit was for specific performance of the renewal of the agreement dated 23.10.1996, the cause of action for which arose on 29.12.2001 when they received reply of the respondent denying that the agreement stood renewed.
Since the suit was filed much after the expiry of 3 years from that date, it was hopelessly barred by limitation.
Ltd. The appellants herein, namely, Hardesh Ores Pvt.
The representative facts giving rise to these appeals are taken from the pleadings in suit filed by Hardesh Ores Pvt.
640/2007 for short Fomento respectively entered into two agreements with the respondent Hede Co. for short Hede on 23.10.1996.
In the event such a companydition situation companytinued to exist for a period exceeding six calendar months, Hardesh shall be entitled to terminate the agreement after giving 30 days numberice in writing.
Both the agreements companytained similar terms and companyditions.
Hardesh was entitled to exercise its option during the entire period of lease in respect of the said mine and renewals thereafter, and until such time as remaining deposits of ore in the said mine companyld be economically exploited.
