First Leasing Company of India Limited, Chennai, is the plaintiff/applicant herein. The present suit has been filed by the applicant against ICRA Limited, Chennai, the respondent herein for declaration that no analysis or change in credit rating of the applicant can be made by the respondent until publication of its annual audited balance-sheet and profit and loss account for the year ending 30-11-1999, and for permanent injunction restraining the respondent from making any alteration in the credit rating of the applicant.
Pending disposal of the suit, the applicant in O.A. No. 75 of 2000 requests this Court to grant interim injunction restraining the respondent/defendant from reviewing the credit ratings of the applicant without a perusal of the latest audited accounts of the applicant for the year ending 30-11-1999 and from publishing any proposal for review or concluded review of the applicant's ratings.
This Court by the order dated 27-1-2000 on a perusal of the plaint and other documents and on hearing the counsel for the plaintiff, felt that since the Rating Committee at its meeting held on 15-1-2000 had already taken a final decision on the rating revision which was conveyed to the plaintiff through the letter dated 17-1-2000, passed only the order of status quo indicating that the respondent should not announce the altered rating to the public, for a period of three weeks and ordered notice returnable in three weeks.
On receipt of the same, the respondent entered appearance through the counsel and also filed the application in A. No. 851 of 2000 to vacate the order of status quo besides filing a counter to O.A. No. 75 of 2000 contending that there is no prima facie case for granting interim relief sought for by the plaintiff/applicant.
Let us see the case of the respective partiesThe case of the plaintiff/applicant is this :-
"(a) The applicant is engaged in leasing activities. The respondent is a company engaged in the business of credit rating and rates debt instruments issued by the companies on their safety as an investment for the purpose of information to the investors. The applicant issued six debt instruments. Out of this, five debt instruments have been rated by the respondent since 1991. The said instruments have consistently been rated at AAA for the past nine years. The sixth instrument was proposed in the year 1999. This has also been rated by the respondent at LAAA (So). The said provisional rating to the sixth instrument was granted on 29-9-1999. This was confirmed on 3-11-1999. The financial year of the applicant ends on 30th November every year. Its audited accounts for the year ended on 30-11-1999 are expected to be finalised only in April, 2000.
(b) At this stage, without waiting for the audited accounts ending 30-11-1999, the applicant was informed by the respondent that the respondent proposed to review the credit rating of its debt instruments. Upon receipt of this information, the applicant sent a detailed letter on 18-1-2000 explaining in detail the various alleged inconsistencies so as to clarify all the issues and apprehensions of the respondent. Despite this, the respondent ignored the said letter and is proceeding to alter the credit rating of the debt instruments of the applicant.
(c) The applicant-company with experience of 27 years in the business of finance has enjoyed the highest safety rating for almost 10 years. The applicant has never defaulted in the payment of interest or principal under any of its debt instruments over this period. When no circumstance has arisen necessitating any revision of the credit rating and when the annual report of the present financial condition has not been finalised, the proposal of the respondent to review and revise the credit rating is irregular and arbitrary. The proposed action of the respondent to review the credit rating is on account of the plaintiff's engagement of a second credit rating agency in December, 1998, which is quite mala fide(d) While revising the credit rating, if the respondent downgrades the credit rating and announces the altered rating to the public, it may cause enormous prejudice and irreparable loss to the applicant. In the present climate of investor disillusionment, any adverse rating of the applicant which is not based on audited Balance-Sheet and its report in the media would cause panic among the depositors/investors, resulting in a run on the investments by the public. Hence, the suit for declaration and permanent injunction along with this application seeking for interim injunction."
The case of the defendant/respondent is as follows :-
"(a) The respondent is a Public Limited Company engaged in the business of credit rating, debt instruments, etc. The respondent was set up in order to provide information and guidance to investors/creditors, to promote transparency and financial markets, provide intermediaries with a tool to improve efficiency in the fund raising process. The primary objective of the respondent is to provide guidance to investors/creditors in determining credit risk associated with a debt instrument/credit obligation.
(b) The respondent has been rating the debt instruments of the applicant since the year 1991. The respondent as a credit rating agency is obliged to continuously monitor the rating of debt instruments rated by it during the lifetime of such debt instruments. The respondent is also required to disclose to the investors/creditors including the applicant, the rating assigned to the securities through regular modes of dissemination. The respondent receives a mandate from its clients requesting for carrying out a credit rating exercise wherein the clients also agree to submit debt instruments to the continuous surveillance by the respondent throughout the life of the instrument. It is also acknowledged that if at any time in the opinion of the respondent, the rating assigned to the instrument warrants revision, the respondent is at liberty to make such revision at any time and also to publish such change in the rating in any manner it considers suitable(c) There are six debt programmes issued by the applicant which have been rated by the respondent. Subsequent to the assignment of the initial rating, the respondent has been continuously monitoring the business environment, development and performance of all its rated instrument during the tenure. Since May 1998, the respondent has been requesting information about the instruments for its continuous surveillance but the same was either unduly delayed or riddled with factual inconsistencies. The respondent had considered downgrading the ratings of the applicant first as early as November 1998.
(d) The applicant appealed for a review and requested to consider its improved performance during the financial year ending November 1998. Accordingly, the respondent considered the request of the applicant and maintained its highest rating pending a complete review of the financial position of the applicant. In August 1999, upon a closer scrutiny of the applicant's financial performance, the respondent observed certain inconsistencies. Therefore, the rating committee decided in the meeting held on 13-8-1999 to seek for clarification from the applicant relating to the high yields from the lease business. Accordingly, the explanation was sought for, but there was no satisfactory explanation.
(e) Then, several opportunities were given to the applicant in the meeting held on various dates and no satisfactory clarification was given by the applicant regarding the high penal charges. As a matter of fact, the applicant admitted in one of the meetings and the low penal charges reported earlier were incorrect. But subsequently, in order to prevent the review of the ratings, the applicant withdrew its rating mandate for additional NCD. However, the respondent informed the applicant that the outstanding ratings would be under review, despite the withdrawal of request for rating for the fresh NCD(f) As far as the other outstanding instruments are concerned, the respondent did a review of the same on 26-11-1999 based on the information available. However, the applicant did not accept the rating and appealed for a review of the decision. Therefore, the applicant's case was once again taken up at the meeting of the respondent on 14-1-2000. After due consideration of various factors, the ratings of the applicant were finally revised in the meeting held on 14-1-2000. The applicant again appealed for review of the rating through the letters dated 15-1-2000 and 18-1-2000. But, the request was declined by the respondent as it had decided not to entertain any further appeal from the applicant since any further meetings with the applicant would not yield any meaningful results. The respondent also sent a rating communication to the applicant on 20-1-2000.
(g) Instead of receiving the said communication, the applicant chose to issue a legal notice on 20-1-2000. The respondent was constrained to downgrade the instrument in time, with its foremost responsibility being towards the investors, as the said revision in ratings reflect the safety of the instruments in the considered view of the respondent. Since the respondent is under the obligation to continuously monitor the applicant's instruments and may revise the ratings at any time, it need not wait for the audited accounts for a financial year ended on 30-11-1999 and consequently, the action taken by the respondent cannot be said to be illegal or arbitrary. The said course was adopted by the respondent to keep the investors informed in a timely manner regarding changes in the fundamental credit quality of its rated issuers.
(h) The applicant is entitled to engage any credit rating agency for which the respondent cannot have any quarrel. But, the downgrading was purely based on the applicant's instruments which had been done in the interest of the investors as per the mandate given by them including the applicant. Therefore, there is no case made out for interim injunction. On the other hand, if injunction is granted, it would not only affect the right of the defendant, disseminate information about the rating and answer queries from the investors relating to the rating of the applicant and affect the instrument but also would affect the other ratings as well and consequently, this would prejudice the interest of all the investors adversely. Hence, the interim application has to be dismissed."
Mr. Arvind P. Datar, the learned counsel appearing for the plaintiff/applicant would elaborately argue on the strength of various documents filed along with the plaint and in the typed set and the citations, that the plaintiff/applicant would be entitled to interim injunction restraining the respondent from making any alteration in the credit rating in O.A. No. 75 of 2000, as he has made out a prima facie case through the pleadings and documents that the review or revision cannot be done in the credit rating of the plaintiff/applicant until the publication of the audited annual report and balance-sheet and profit and loss account for the year ending 30-11-1999.
Arguing contra, Mr. Seshadri, the learned counsel appearing for the defendant/respondent, on the strength of various documents and the citations, would also argue with vehemence that the plaintiff/applicant would not be entitled to interim injunction, as it would be against the public interest and the interest of the investors and also the interim relief sought for in the application would be beyond the scope of the suit.
Having heard the counsel for the parties carefully and having regard to the pleadings, counter-pleadings and the documents filed by the rival parties, I am of the considered view that the plaintiff/applicant has not made out a prima case for the grant of interim injunction pending disposal of the suit. The circumstances for the abovesaid conclusion could be narrated as below.
The reliefs sought for in the plaint are (a) for declaration that no analysis or change in the credit rating of the applicant can be made by the respondent until publication of the annual audited balance-sheet and profit and loss account for the year ended on 30-11-1999, and (b) for permanent injunction restraining the respondent from making any alteration in the credit rating of the applicant till the publication of the annual audited balance-sheet and profit and loss account for the year ended on 30-11-1999The reading of both the prayers would clearly show that the relief of interim injunction in the main suit is only an ancillary relief to the main relief of declaration. There is no dispute in regard to the fact that in a suit for declaration, when an interim relief is sought for, the burden is on the plaintiff to establish that he is entitled to delcaratory relief to claim such an ancillary relief of injunction. In other words, if the plaintiff/applicant is not entitled to the relief of declaration, then he is not entitled to the ancillary relief of injunction.
It cannot be debated that the prima facie case has to be found out from the reliefs sought for in the plaint and the pleadings thereto. Thus, the Court will have to see what is the exact case with which the plaintiff/applicant has come forward with to claim the relief. As noted above, the relief sought for in the present case is declaratory in nature.
According to the plaintiff/applicant, the respondent cannot make a review or analysis or change in the credit rating of the plaintiff, unless there is a finalisation of the audited accounts for the year ending 30-11-1999, which would be expected to be ready only by April, 2000. Since review has been made during this period even before the publication of the audited accounts report, the plaintiff has approached this Court with a relief of declaration for the same and is seeking the Interim relief of stopping the process of reviewing the credit rating.
When such is the specific case, it is for the plaintiff/applicant to establish that the respondent cannot review during the interregnum period and the rating can be assigned only on the basis of the audited accounts of the company. But, as pointed out by the learned counsel for the respondent, there is no mandate shown in any of the documents filed by the plaintiff that the defendant/ respondent has to make credit rating only on receipt of the annual audited balance-sheetThough it is alleged in the plaint that the procedure that is adopted by the defendant/respondent is to review the rating annually and, therefore, for the rating to be reviewed, the defendant/respondent will have to wait till finalisation of the accounts for the year ending 30-11-1999, no document has been shown to substantiate that such a procedure is mandatory and no rule would say that the rating has to be done only on the basis of the annual audited balance-sheet and the same should be done only once a year that too, only after receipt of the audited balance-sheet. On the other hand, the documents and rules would provide contrary to the case projected by the plaintiff/applicant.
According to the counsel for the respondent, SEBI (Credit Rating Agencies) Regulation, 1999 came into force only in July, 1999 and therefore, it is necessary to examine the law prevailing prior to July, 1999 to determine as to how the regulations apply to the debt instruments created prior to the introduction of the said regulation. Even the new regulations do not restrict surveillance process to a procedural rigidity of just once a year.
Admittedly, the plaintiff/applicant who is engaged in the business of extending lease finance facility for over 27 years, has approached the defendant/respondent in 1999 to rate its instruments. The respondent is engaged in the business of credit rating which is intended to protect the investors. The respondent's job is to analyse the financial status of the parties and grant them rating with reference to the safety, liquidity, etc. The respondent was set up in order to provide information and guidance to investors/creditors, to promote transparency in financial markets, provide intermediaries with a tool to improve efficiency in the fund raising process and enhance the ability of borrowers to accept the money market for tapping resources of the investing public. Therefore, the respondent as a credit rating agency is obliged to continuously monitor the rating of debt instruments rated by it during the lifetime of such debt instrumentsThe respondent is required to disseminate information relating to the ratings and changes to earlier ratings promptly through press releases and websites, etc., in order to provide timely information to the investors as well as the prospective investors. According to the respondent, for this purpose of continuous surveillance throughout the life of the instrument and for regular modes of dissemination to the investors, the respondent receives a mandate from its clients requesting for carrying out a credit rating exercise. Through such mandate the applicant also acknowledged the right of the respondent to publish the rating and any changes in it. Consequently, the respondent is required to give a rationale for the rating assigned to the client who acknowledged that if at any time in the opinion of the respondent based on any event or change of event, the rating, assigned to the instrument warrants revision. It is open to the respondent to make such a revision and to publish such a review in rating in any manner.
The relevant mandates of the first five instruments issued prior to the SEBI Regulations have been disclosed in the document Nos. 1, 4 and 12 in the typed set filed by the defendant. The essential features of the mandate are the following :-
(a) Continuous monitoring of the rating;
(b) While determining the rating, the respondent is entitled to rely on current information available;
(c) The respondent does not guarantee the completeness or accuracy of information on which rating is based.
(d) Right to use the rating would rest with the applicant subject to right of the respondent to publish rating/any change in rating once the applicant has decided to use the initial rating.
(e) The applicant agreed to furnish continuously and within due time all such information that the applicant considers material or the respondent may require any material from the applicant for the purpose of monitoring of the rating assigned(f) If at any time, in the opinion of the respondent based on any event/change of event, the rating assigned warrants revision, the respondent is at liberty to make such a revision and to publish such a change in rating in any manner it considers suitable.
(g) The applicant is bound to furnish such information as the respondent may require from time to time for the above purpose.
(h) It is open to the respondent in the public interest to disclose to the appropriate authorities the correct position in case of allegations of misstatement by the applicant in public document about the rating assigned or about where the instrument was rated by the respondent or not.
All these mandates are agreed terms. That apart, it is noted that the regulations 14 and 15 of the SEBI Regulations, which came to be introduced later also would fulfil all the requirements contained in the earlier documents.
Regulation 14(c) provides that the agreement shall contain a clause that the client should agree to a periodic review of the rating by the credit rating agency during the tenure of the rated instrument. Regulation 15 states that every credit rating agency shall during lifetime of securities rated by it continuously monitor the rating of such securities.
These regulations, which according to the plaintiff, would apply to the present case and the mandates of the five instruments issued prior to these regulations would clearly show that the respondent can have a continuous surveillance for monitoring of the rating and in the event of any change the rating assigned could be revised by the respondent and the same can be published to make the investors known and the respondent need not wait till the finalisation of the audited accounts report ending 30-11-1999. Therefore, the contention that the credit rating could be done only once a year and only after receipt of the audited balance-sheet would not sound well, as such an interpretation would be quite contradictory to the mandates and the regulations referred to above. As pointed out by the counsel for the respondent, the credit rating is prospective evaluation and not merely an indicator of the past performanceFurthermore, when the respondent commenced the process of review of rating after 22-6-1999, the applicant furnished unaudited balance-sheet and informed the respondent that the variance between unaudited and audited account figures would not be in excess of + or - 5%. The letters dated 8-12-1999, 14-12-1999, 20-12-1999 would clearly show that the applicant did not at all object to the said review of the rating.
It is also to be noticed through various documents filed by the respondent that the applicant has never required the respondent to defer rating till annual accounts are finalised. On the other hand, as stated above, unaudited report with figures was sent by the applicant to the respondent stating that it can be taken into account, as it is subjected to tolerant variance of + or - 5%. As a matter of fact, the respondent convened a rating committee meeting on 13-8-1999 and observed various inconsistencies on a closer scrutiny of the applicant's financial performance against the available industry trends. Therefore, the Committee sought for clarification from the applicant relating to the said inconsistencies and not satisfying with the explanation given by the applicant, the respondent convened several meetings by giving opportunities to the applicant.
On 7-9-1999 the applicant informed that the yields were significantly higher than the lending rates indicated by the IRR (Internal Rate of Return) due to the inclusion of high amount of penal charges. In fact, the applicant admitted that the lower penal charges reported earlier were incorrect. Though the opportunities were given in the further meetings held on 13-9-1999 and 24-9-1999, the applicant has not given satisfactory clarification regarding the high penal charges. Despite repeated reminders by the respondent calling upon the applicant to furnish details of the same, the applicant failed and neglected to do so. Subsequently, the applicant attributed variance not only to penal charges, but also to extraordinary incomeIn the light of the above circumstances, the prayer seeking for declaration that the respondent cannot make a review in the credit rating without the annual audited report for the year ending 30-11-1999 in the absence of any embargo put on the respondent may not be proper. When those materials and statutory provisions prohibiting the respondent from making a credit rating only after the receipt of annual audited report, this Court cannot hold, that too at the initial stage, that the applicant would be entitled to interim injunction from making any alteration in the credit rating till the publication of the annual audited report.
On a perusal of the records, in my view, the relief sought for in the application would virtually amount to a decree for declaration. Such an interim relief cannot be granted, especially when the said relief goes beyond the main relief, as pointed out by the learned counsel for the respondent.
However, during the course of arguments, the learned counsel appearing for the plaintiff/applicant conceded that the respondent has got competency to review the credit rating and that he need not have to rate annually.
When such a concession has been made by the counsel for the applicant, on the face of it, it would not be proper for the applicant to seek for the very same relief in the application, especially as there is no prima facie materials to hold that the applicant would be entitled to declaration regarding the incompetency of the respondent over the review or revision of the credit rating.
But, the learned counsel for the applicant in the alternative, though would not challenge the right of the revision or review over the credit rating, would submit that the proposal of the respondent to revise the credit rating is wholly irregular and arbitrary when no circumstance has arisen necessitating any revision of the credit rating of the applicantThis submission also, in my view, is not sustainable for the simple reason that the respondent, as indicated above, is under the obligation to continuously monitor the applicant's debt instruments and may revise the rating at any time, especially when the respondent found inconsistencies and had not received satisfactory clarification from the applicant for the said inconsistencies despite several opportunities given.
As stated above, the applicant has never objected to the review in any of his letters found available in the typed set. The surveillance of the instruments have to be continuous. The monitoring of rating is continuous and up to duration of the instruments.
It is seen from the correspondence, after rating is disclosed on 22-6-1999, that the continuous rating process commenced and information and particulars are obtained. The correspondence continues right from 1-7-1999. The letters dated 1-7-1999, 14-7-1999, 15-7-1999, 19-8-1999, 4-9-1999, 9-9-1999, 14-9-1999, 17-9-1999, 25-10-1999, 15-11-1999, 19-11-1999, 20-11-1999, 29-11-1999, 8-12-1999, 14-12-1999, 17-12-1999, 18-12-1999 till 17-1-2000 would clearly show that the plaintiff/applicant had not objected either to the continuous monitoring the rating and the action of the respondent seeking clarification sought for from the applicant on the ground that the rating was irregular and arbitrary. On the other hand, these letters would show that they were going on giving explanation with reference to the inconsistencies which were not ultimately accepted by the respondent.
As detailed in the earlier paragraphs, the applicant himself would admit that the lower penal charges reported earlier were incorrect. It is also to be noticed that the applicant admits the variance not only to penal charges but also to extraordinary income. Under those circumstances, there is no point in contending that there is no circumstance or change of event warranting for review or revision of the credit rating assignedAs a matter of fact, the respondent gave a number of opportunities to the applicant to present its views by reviewing his case at the meetings held on 13-8-1999, 20-8-1999, 13-9-1999, 24-9-1999, 26-11-1999 and 14-1-2000. But, these opportunities as mentioned in the documents filed by the respondent, have not been referred to either in the plaint or in the affidavit filed by the plaintiff/applicant. Under those circumstances, it would be very difficult for this Court to hold that the exercise of the powers of the respondent for review in the credit rating is irregular or arbitrary.
A faint attempt has been made by the plaintiff/applicant that the process or review was commenced, since the applicant has engaged another credit rating agency and on coming to know about the work given to another agency, the respondent threatened the applicant that he would downgrade the plaintiff, if the applicant proceeds to engage the service of another agency.
According to the plaintiff, the attitude of the proposed action of the respondent for review is on account of the engagement of the second credit agency and the respondent proposed to downgrade the credit rating and its debt instruments, in view of the refusal of the applicant to terminate the engagement with the said agency.
No doubt, this application regarding the alleged mala fide attitude on the part of the respondent has been mentioned both in the affidavit and in the plaint. But, none of the documents filed along with the plaint would show that he had complained about such a mala fide attitude on the part of the respondent on the abovesaid reason.
It is the case of the respondent denying the said allegation that the applicant is entitled to engage any credit rating agency and for that matter, the respondent cannot have any grievance and that the downgrading is purely based on the credit quality of the applicant's instruments. It is also submitted by the counsel for the respondent that the applicant has approached second rating agency only in December, 1998, i.e. after the respondent indicated its decision to down-grade the applicant subsequent to the rating committee meeting held in November, 1998Under those circumstances, it cannot be said that the respondent's decision to downgrade the credit rating is mala fide, since the approach of the applicant in December, 1998 to second credit rating agency has no connection or relevance with the decision taken by the respondent.
Moreover, except the pleadings regarding the threat of the respondent, none of the documents produced by the applicant would show that he complained about such threat. Therefore, the allegations regarding the mala fide cannot be given any credence. That apart, the documents filed by both the applicant and the respondent clearly show that there were several correspondence and several meetings held by giving opportunity to the applicant before taking decision.
For the relief of injunction whether permanent of temporary, the plaintiff/applicant has to establish (a) strong prima facie case; (b) balance of convenience; and (c) irreparable injury. The relief of injunction is the equitable and discretionary relief.
While considering the relief, it shall be relevant for the Court to consider the conduct of the plaintiff/applicant also. In other words, whether he has come to the Court with clean hands or not. He who seeks equity must come with equity.
In my view, in view of the discussion made above, the applicant has failed to prove all the three ingredients, namely, prima facie case, balance of convenience and irreparable injury. On the other hand, if interim injunction is granted, the prejudice for the respondent would be more.
The credit rating agency is bound by the code of conduct contained in III Schedule. Any order of injunction would disturb the credibility of the Credit Rating Agency and may result in the regulating authority withdrawing a certificate issued to it under regulation. Thus, the prejudice or injury caused to the Credit Rating Agency which is the respondent is much more than the plaintiff/ applicant and it will be irreparable, especially when the applicant has not made out a prima facie case or a case of prejudiceThe relief of injunction is
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a discretionary relief. The Court is exercising such discretion as a Court of equity. The person who comes to the Court seeking equity should do equity. If this principle is applied to the present case, in my view, the applicant would not be entitled to interim injunction, as it would prevent the respondent from discharging their statutory obligation. Though several citations have been referred to by both the counsel in respect of various points, I deem it appropriate to refer to only some of the decisions which are relevant for the issue raised in this application. In Yugantar v. Union of India (Delhi), 1997 SEBI & Corporate Laws Reports 145, the Delhi High Court would make the following observation :- "Before parting with the case we must observe that the SEBI, the RBI and the Delhi Stock Exchange are expert bodies in financial, accounting and economic matters. The questions as to the accounting method adopted or the fixation of the premium at which the share can be issued or determining the rates at which premium should be allowed in public issues are matters which fall within their domain. The Court does not have the expertise to embark upon the determination of these issues. In Peerless General Finance and Investment Co. Limited v. Reserve Bank of India, the Apex Court would hold thus in Paras 32, 37, 67 of AIR :-" It is not the function of the Court to amend and lay down some other directions and the High Court was totally wrong in doing so. The function of the Court is not to advise in matters relating to financial and economic policies and for which bodies like Reserve Bank are fully competent. The Court can only strike down some or entire directions issued by the Reserve Bank in case the Court is satisfied that the directions were wholly unreasonable or violative of any provisions of the Constitution or any statute. It would be hazardous and risky for the Courts to tread an unknown path and should leave such task to the expert bodies. In matters of economic policy even experts can seriously and doubtlessly differ. Courts cannot be expected to decide them without even the aid of experts. The function of the Court is to see that lawful authority is not abused but not to appropriate to itself the task entrusted to that authority. A public body invested with statutory powers must take care not to exceed or abuse its power. It must keep within the limits of the authority committed to it. It must act in good faith and it must act reasonably." In my considered opinion, the legal situation as projected by the Delhi High Court and the Apex Court would fully apply to the present case also. In the light of the above principles, if we look at the facts of the present case, I take the view that the respondent has acted in good faith and reasonably within the limits of the authority through the mandates given to the respondent and the regulations framed thereof. Therefore, I do not find merit in any of the contentions urged by the counsel for the applicant and consequently, the application in O.A. No. 75 of 2000 is dismissed and A. No. 851 of 2000 is allowed. However, it shall be stated that the observation of mine made above would confine to the disposal of this application alone and it may not have any bearing on the decision to be taken by the Court at the time of trial on the basis of the issues to be framed in the suit.