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Sociedade Zarapkar & Parkar Limited Through its Socio And Power of Attorney Holder, Jaiprakash Gajanan Parkar v/s Salgaocar Engineers Pvt. Ltd., represented by its Authorised representative, Subramany & Others

    Writ Petition No. 142 of 2021

    Decided On, 10 February 2021

    At, In the High Court of Bombay at Goa


    For the Petitioners: S.D. Lotlikar, Senior Advocate with Shivan Desai, Swati Kamat, Advocates. For the Respondents: R1 to R3, Nitin Sardessai, Senior Advocate with Vibhav Amonkar, Gautami Kamat, Shri Shivam Fadte, R4, V.A. Lawande, Advocates, R5, Prashil Arolkar, Additional Government Advocate.

Judgment Text

1. Heard the learned senior counsel and other counsel for the parties. Rule. Rule returnable forthwith with the consent of the learned counsel appearing for the parties.Introduction: 2. In a suit for a permanent injunction, the plaintiffs fail to get an interim injunction. But they succeed in the Miscellaneous Civil Appeal. So one of the defendants has filed this writ petition. It assails the appellate order on the grounds that it has interfered with the trial Court's judicious exercise of discretion. The respondents 1 to 3, that is the plaintiffs, argue that they have established all the three cardinal principles to earn injunction, but the trial Court has erred on that count. So the Appellate Court has corrected the mistake; it has merely preserved the disputed commodity pending the litigation.3. Who should this equitable remedy favour? After all, can this Court interfere with an Appellate Court’s order on the premise that it views the matter in a different light—even in a better light?Facts: 4. The first three respondents are the plaintiffs in Commercial Suit No.23 of 2020 before the Commercial Court, North Goa, at Panaji; they all are private limited companies. The writ petitioner is the second defendant; the fourth respondent, a partnership firm, is the first defendant; and the fifth respondent, a Government Official or Department, is the third defendant. As the adjudication is about an interlocutory order in a pending suit, I will refer to the parties as they have been arrayed before the trial Court.5. The second defendant—that is, the petitioner in this writ petition —is said to be a company incorporated in 1901 under the Portuguese law. As it has not been registered under the Indian laws, its status is disputed. The plaintiffs contend that the defendants 1 and 2 are the same. But they have shown them as two entities to avoid confusion and to ward off technical challenges. We need not labour on that point.6. In the Suit, the plaintiffs have sought a permanent injunction to restrain “the defendant nos.1 & 2 … from transporting the iron ore … from the said mine and/or interfering with the iron ore … at Santonachi Upri Iron Ore Mine bearing TC No.34/1955 in Dabal Village, Sanguem Taluka”. They have also sought a permanent injunction to restrain the third defendant “from entertaining and/or processing any application for transportation of ore/payment of royalty in respect of iron ore/subgrade mineral rejects/dumps/stalks... .” The other consequential reliefs the plaintiffs have sought are not relevant for our purpose.7. To contextualize the case, we need to set out the facts ever so briefly. The case has two distinct phases: developments up to 2019 and developments in 2020. Though the Suit focuses on the developments in 2020, to appreciate those developments, we need to touch upon the earlier developments as well.(a) The Background: 8. In 1955, the erstwhile Portuguese Government granted mining concession to one Gajanan Pandurang Shet Parkar. Through an order, dated 28.02.1958, the Government of Goa transferred that mining concession to the second defendant, which was incorporated in 1901.9. Initially, the second defendant had an agreement with two companies for the extraction and sale of the iron ore. But in 1983 that agreement seemed to have ended. Then, in March 1983, the second defendant—that is, the original concessionaire—entered into “the principal agreement” with Sharad Chandra Zarapkar and Anil Salgaocar.10. Later, in April 1986, the first defendant contracted with the first plaintiff. Through that agreement, it has appointed the first plaintiff as the sole contractor for extraction and transportation of iron ore from its leased mine. It was initially for 10 years, extendable at the first plaintiff ’s option for “over four periods of five years each on the same terms and conditions”—20 more years.11. Similarly, the first defendant contracted with the second plaintiff. Through that agreement, the second plaintiff “was to buy all the iron ore extracted, transported and delivered” from the leased mine. This agreement, too, contains similar periods of extension. In sum, the first and the second defendants had been the leaseholder; the plaintiffs had been the extractors and appropriators of the iron ore—since 1986. As these two agreements lay the foundation and provide legitimacy for the transactions between the plaintiffs on the one hand and the defendants 1 & 2 on the other hand, we need not elaborate on the other collateral developments in the matter. Now, we will focus on litigation.(b) The Genesis of Litigation: 12. In this disposition about the interim injunction, the third defendant—the Directorate of Mines & Geology—is a formal party. No relief operates against it. So all references to “defendants” relate to the first and the second defendants—not the third one.13. In September 2006, there was an exchange of notices between the plaintiffs and the defendants. Initially, the defendants alleged that the lease ended in April 2006. They also alleged that the plaintiffs should pay about two crore rupees to the defendants as mesne profits. In October 2006, the third plaintiff replied. Though it denied all the allegations, it sent six cheques for over two crore rupees, along with a statement of year-wise payments to the defendants. The defendants did encash them.14. Nevertheless, the defendants filed two Civil Suits: Special Civil Suit No.30 of 2006 and Special Civil Suit No.31 of 2006 before the Court of Civil Judge, Senior Division, at Quepem. In Special Civil Suit No.30/2006, they wanted a permanent injunction to restrain the plaintiffs here (defendants there) from extracting and transporting ore from the suit mine. In Special Civil Suit No.31/2006, they wanted a permanent injunction to restrain the plaintiffs from purchasing and transporting ore from the Suit mines. In that Suit, they also wanted the plaintiffs to pay about two crore rupees with interest. There are other reliefs sought; we need not refer to them.15. In the course of time, these two suits were transferred to the Court of District Judge, South Goa at Margao, and renumbered. Then, in May 2009, the trial Court passed a common order, disposing of the temporary injunction applications. It appointed the third defendant as the Court Receiver for the leased mine. He was directed to check the position of the mine, prepare an inventory, and submit a report to the Court. In fact, the third defendant inspected the site and submitted a report along with an inventory to the trial Court. It has identified iron ore stalks/dumps from serial number 1 to 10. Of course, the defendants dispute this assertion. According to them, the Receiver’s Report referred only to iron ore dumps 1 to 5. We will revisit this controversy later.(c) The Minutes of Order in Invitum: 16. In the meanwhile, the plaintiffs, as the defendants in those suits, filed Appeal From Order Nos.2 & 3 of 2010 against the trial Court's common order, dated 11.05.2009, appointing the third respondent as Receiver. In these Appeal From Orders, the plaintiffs and the defendants filed “Minutes of the Order” recording “an understanding arrived at and agreed in respect of the said mining lease between them”.17. Among the terms of those Minutes of the Order in Invitum, Clause 4 assumes importance. It reads:The appellants [plaintiffs] shall be entitled to carry out, transport, lift, sell, export of the ore lying in the Suit mines... and to deal with the same in the manner they wish. However, pending the hearing of the applications ordered to be disposed of there shall not be any fresh extraction of ore deposits.(italics added)18. This Court accepted the terms of compromise the parties had entered into and, through the order dated 14.01.2010, directed the parties to abide by those terms. Over time, the State of Goa applied to this Court for a modification/recalling of the order, dated 14.01.2010. It has objected to clause 4. According to it, no other person than the lessees is recognised or authorised to operate the mining lease. This Court, then, has held that the arrangement between the private parties will not affect the Government's rights. And it has kept all contentions of the parties open.(d) Contempt Cases: 19. In terms of the Minutes of Order, dated 14.01.2010, the plaintiffs transported the iron ore stack nos.6 to 10. Thereafter, when they wanted to transport the iron ore at stack no.1, the defendants filed two contempt petitions before this Court: Contempt Petition Nos.16 & 17 of 2010. Through an order, dated 15.04.2011, this Court disposed of those Contempt Petitions. In the order, the Court has noted that the defendants could not make out any case of contempt.20. Once again, the defendants applied for a temporary injunction before the trial Court. Pending that application both the Civil Suits were renumbered: SCS Nos.5 and 6 of 2010. Eventually, through an order, dated 25.05.2011, the trial Court dismissed the defendant’s application for a temporary injunction. Aggrieved, the defendants filed two Appeals from Orders. In those Appeals From Orders, this Court has provided no interim relief, however.(e) The Precipitous Step: 21. When these Appeals From Orders were pending, the defendants used musclemen to dispossess them from the leased mine, according to the plaintiffs. Then, the plaintiffs have filed a Criminal Contempt Petition with Stamp No.2271 of 2012 before this Court. It is said to be awaiting the Learned Advocate General’s consent.22. This is one phase of the narrative, as the plaintiffs have pleaded in the suits.The Legal and Statutory Developments in the Mining Affecting State of Goa: 23. In September 2012, the Government of Goa suspended all mining operations in the State. The next month, in Goa Foundation v. State of Goa, (PIL Writ Petition No.435/2012), the Supreme Court has stayed all mining operations and transportation in the State. Then, on 17 October 2013, State of Goa notified the Goa (Prevention of Illegal Mining, Storage and Transportation of Minerals) Rules, 2013 (“the 2013 Rules”).24. In April 2014, the Supreme Court disposed of Goa Foundation v. Union of India, directing the State of Goa to enforce the 2013 Rules strictly. That said, in January 2015, MMDR (Amendment) Act, 2015, was brought into force. With that, all the mining leases stood extended till 31 March 2020. In September 2016, the Director of Mines issued a deemed extension order to the defendants. The actual extension followed it in January 2017. So the lease was valid until 31 March 2020.25. With all the above developments, in March 2018 the Government permitted the transportation of ore extracted earlier and lying in various Mines in the State of Goa. The same year, in May, this Court stayed the Government's order. In January 2020, the Supreme Court set aside the High Court's stay order, dated 04.05.2018, and restored the Government's order. This facilitated the transportation of iron ore.26. On 26 November 2020, the Government of Goa permitted the defendants to remove the ore from the leased mine. It wanted them to complete the transportation by 31 January 2021 "or until such date if extended further". The initial period having expired, the defendants have already applied for an extension.27. Then, the plaintiffs came to know about the defendants’ efforts to transport the iron ore on their own. So on 26 November 2020, the third plaintiff objected. But on the same day, the defendants seemed to have secured the permission. One day later, the defendants applied for a No- Objection Certificate from the Goa State Pollution Control Board (GSPCB).28. At this stage, the plaintiffs filed Commercial Suit No. 23/2020. Pending this Suit, on 7 December 2020, as directed by the GSPCB, the defendants paid Rs.3 lakhs towards monitoring charges. On 10 December, they secured the NOC. On 14 December 2020, the third defendant granted Sale Permit to the defendants, besides a Transit Permit for 5000 tons to a registered trader and purchaser of the ore.29. In the Suit, on 16 December 2020, the plaintiffs secured an ad interim injunction. Eventually, on 23 December, the trial Court dismissed the plaintiffs' injunction application. It also refused to extend the adinterim relief until the plaintiffs preferred an appeal. On this score, the plaintiffs came to this court in a writ petition but could not succeed.30. As to the appeal and the forum for appeal, the defendants accuse the plaintiffs of forum shopping. But eventually, the matter landed before the appellate court with territorial jurisdiction over the matter. Unsavoury as the allegations have been, I do not intend to burden this judgment with those details. All's well that ends well—I note.31. On 12 January 2021, the Commercial Appellate Judge set aside the trial Court’s Order and, as a result, granted the temporary injunction in the plaintiffs’ favour. Aggrieved, the 2nd defendant has filed this writ petition.The Submissions: 32. Shri Lotlikar, the learned Senior Counsel for the petitioner-2nd defendant, to begin with, has taken me through the orders of both the trial Court and the appellate Court. And, then, he has elaborately argued on the merits of the matter. I will summarise the arguments:* The trial Court order is an order of discretion; the Appellate Court ought not to have interfered with the trial Court’s discretion.* The orders in the earlier litigation are merely interlocutory; they do not bind the parties in the later proceedings.* The 2nd defendant alone is the lessee, and the plaintiffs have nothing to do with the lease.* The 2013 Rules allow only the lessee to deal with the iron ore.* The 2nd defendant has secured all the statutory permissions and licences to sell and transport the iron ore in stack Nos. 1 to 5.* The 2nd defendant has, in fact, paid the royalty and other dues to the third defendant.* The 2nd defendant has already created a third-party interest.* The Suit is bad for non-joinder of a necessary party.* The Minutes of Order, dated 14.01.2010, read with the Receiver's report, did not even remotely indicate any right in the plaintiffs' favour.* The Appellate Court ought not to have relied on the Courts' prima facie observations in the previous rounds of litigation.* This Court's observations in the Contempt Petitions, as clarified, ought not to have been taken as conclusive.* Once the plaintiffs have not been in physical possession of the iron ore, their inter-meddling with that does not arise.* The Appellate Court ought not to have restrained the true owner from dealing with its own property.* In the same manner, the Appellate Court ought not to have concluded that the plaintiffs have purchased the iron ore.* Once statute bars the plaintiff from dealing with the mine or the ore extracted from that mine, the plaintiffs' entire contentions have become non-issues.* The plaintiffs have miserably failed to establish any prima facie case, the balance of conveyance, or irreparable injury.33. So the learned Senior Counsel for the petitioner-2nd defendant has urged this Court to set aside the Appellate Court’s order and restore the trial Court’s order.Respondent Nos. 1 to 3: 34. Shri Nitin Sardessai, the learned Senior Counsel for the respondents 1 to 3 (plaintiffs) has supported the Appellate Court’s order. According to him:*The trial Court's order exemplifies perversity of findings.*The Appellate Court, on the other hand, corrected gross errors of fact and law and granted injunction.*The Appellate Court has only intended to preserve the subject matter of the dispute until the suit is disposed of.*The defendants themselves, in the earlier round of litigation, have asserted that money is not an adequate remedy.*The alleged third-party interest is a smokescreen to prevent the plaintiffs from getting just relief.*One of the purchasers shown is the defendants itself; it cannot be both a seller and a purchaser.*The defendants’ stand at various stages has been full of contradictions.*The trial Court has travelled much beyond the prima facie case and rendered sweeping findings.*The prior litigation, including the interim orders, binds the parties.*The 2013 Rules do not affect the plaintiffs’ rights.*The issue of non-joinder of necessary parties has no substance; at any rate, the plea on that count is premature.*The Minutes of Order in Invitum clearly declare the parties’ respective rights.*Until 2019, the defendants claimed only in terms of money; they had staked no right over the mineral.*All along, the defendants have nothing to do with any aspect of mining activities; they only were collecting their share of money from the proceeds.*If the defendants are allowed to sell the ore, the plaintiffs will be remedy less.35. So, the learned Senior Counsel for the respondents 1 to 3- plaintiffs has urged this Court not to interfere with the Appellate Court’s order especially by invoking Article 227 of the Constitution of India.Respondent No.5: 36. Shri Lawande, the learned counsel for the 5th respondent-3rd defendant, has adopted the submissions advanced by the petitioner (2nd defendant) and has elaborated on them. For the reasons I have mentioned below, I am not extracting those arguments.Discussion: The Time that cannot be Tamed: 37. In 2003, the Law Commission suo motu took up the issue of constituting Commercial Divisions in High Courts. It was in view of the profound changes in the country’s economic policies post-1991 and because of the perception that the Indian judicial system had “collapsed” due to inordinate delays. It has felt the need to ensure the fast disposal of high-value commercial disputes: “to provide assurance to domestic and foreign investors." (Report No.253, Law Commission of India, Pg 1). Some called it “a measure to save the Indian judiciary from the embarrassment of adverse criticism by foreign courts which had been asked to assume jurisdiction by litigants on the grounds that the Indian judicial system had broken down” (Commercial Courts Act, 2015: An Empirical Impact Evaluation, Vidhi Centre for Legal Policy). The 188th report paved the way for the 2009 Bill. But that Bill lapsed later.38. Then, the Law Commission came out with its 253rd report providing a revised draft bill in 2015. In this report, the Law Commission has felt that an effort to alter India's litigation culture fundamentally should be made. It wanted a shift from a litigant-managed to a court-managed litigation process. In this context, it has lamented that "in spite of amendments to the CPC in 1976 and in 2002, changes in the manner of conducting civil litigation have been minimal and largely cosmetic".39. The Commercial Courts Act, 2015, is the latest in a series of legislative measures to improve the Indian standing in the International Ease of Doing Business rankings. In 2014, India was ranked 142nd; now, it stands at 63rd position among 190 countries. The Commercial Courts Act is one of the architects of this quantum jump. But with our customary delays and antiquated approaches, we cannot afford to let this piece of legislation, too, perish on the procedural altar.40. In fact, Section 8 of this Act bars revision or other remedies against an interlocutory order. I should be adjudicating this writ petition, ubiquitously under Article 227 of the Constitution, keeping in view the spirit of this legislation and the mandate of section 8, in particular. Agreed, a constitutional remedy cannot be constricted with a statutory stipulation. But we cannot, all is said and done, stretch the supervisory jurisdiction in the judicial sphere to the point of snapping.The Pain of Prolixity: 41. The matter by itself is complex, with a few rounds of litigation. That accepted, adjudication under Article 227 of the Constitution is tenuous. It is no appeal, not even revision in the strict sense. But the writ pleadings alone run into 56 pages. In these interlocutory proceedings, the whole case bundle comprises four volumes, running into over 1,000 pages. The arguments filled two full days. The trial Court’s order spreads into 31 pages, and the Appellate Court’s into 42 pages.Trial Court’s Findings: * The Receiver’s inspection note does not whisper about any reject dump.* The amount mentioned in the Minutes of Invitum Order concerns only the dumps at Serial Nos.6 to 10 in the surface plan.* About the ownership of dumps at Serial Nos.1 to 5, we must look to 2013 Rules.* The Plaintiffs are neither the leaseholders nor the end-users as per the Rules of 2013.* Rule 7 of the 2013 Rules bars long term agreements for sharing or selling minerals.* Because of the statutory changes, all the agreements and the Minutes of Invitum Order have become inexecutable.* The 2nd defendant has all the permits, licences, and has even paid the royalty.* As per the Supreme Court’s directions, the 2nd defendant has the prima facie case in its favour, being the leaseholder.* In the contempt case pending before the High Court, the plaintiffs have sought the same relief. So they “ought to have pressed for the said reliefs” before the High Court.* The Order in Invitum is not final because the parties were given liberty to modify the terms. Nor has that order been passed on the merits; it “was by consent of the parties”.* All the orders in the earlier round of litigation between the parties are interim reliefs based on prima facie case.* The State of Goa has already secured clarification from the High Court about the scope of the Order, dated 14/01/2010. That order does not affect the Government.* The High Court’s observations in the Contempt Cases are case-specific.* The Government wanted the leaseholder to transport the mineral within a time frame.* The plaintiffs do not possess the mineral, nor have they prayed for its recovery.* The reliefs against the 3rd defendant have become infructuous because that authority has already granted all permissions.* The plaintiffs have not added the Government as a party, though it is a necessary party.* The parties’ conduct counts.* The plaintiffs can be compensated.The Appellate Court’s Findings: *As to the government's impleadment as a party, an application for that purpose has already been pending.*Clause 3 of the Minutes of Order in Invitum records that the plaintiffs “shall be entitled to carry out, transport, lift, sell/export all the Ore lying in the Suit Mine”.*Clause 3 of the Minutes of Order in Invitum required the plaintiffs Rs.5 lakh “towards the Purchase Price of Ore”, and it was deposited.*Interim orders granted earlier cannot be ignored and have to be given due consideration.*The High Court’s Order, dated 15.04.2011, in Contempt Petitions No.16 & 17/2010, has prima facie value, though the High Court has confined it to the issue in the contempt case.*The statutory changes are prospective.*The 2013 Rules do not state that they apply to minerals already sold.*The Order in Invitum recorded a clear understanding between the parties that “the iron ore stocks … lying in the said mine belong to the plaintiffs and the plaintiffs alone have the right to deal with the said iron ore … in the manner they deem fit”.*The questions of sale and entitlement are questions of evidence to be tried in the Suit.*There is no documentary evidence, note even details in the pleadings, to support the claim of third-party rights having been created.*The Order, dated 27.05.2011, of the Principal District Judge, South Goa at Margao in Civil Suit No.6 of 2010; the Order, dated 15.04.2011, of the High Court in CP Nos.16 & 17/2010; and the Minutes of Order in Invitum establish a prima facie case in the plaintiffs’ favour.*The balance of convenience, too, lies in the plaintiffs’ favour. Injunction only postpones the sale of the ore; its refusal will deprive the plaintiffs of their right to the ore. This will defeat the purpose of this Suit and also other pending suits.*In SCS No.19/2019 (New), the 2nd defendant as the plaintiff before the Civil Judge, Senior Division, Quepem, has pleaded that iron ore “is not an ordinarily available commodity in the open market and that compensation in terms of money would not be an adequate relief ”.Disposition: 42. In a case for an interim injunction, the petitioner must satisfy the three golden principles: prima facie case, the balance of convenience, and irreparable injury. These issues may depend on various collateral issues. Here, in the light of the reversed findings, let me deal with these issues:(a) Do the Interlocutory Orders Bind?(b) Does the Previous Pending Litigation Impinge on this Suit?(c) Have the Statutory Changes Altered the Parties’ Relationship or Affected their Rights?(d) Which is the Better Course of Acttion: Preserving the Property or Allowing it to be Sold?(e) Does the Plea of Non-Joinder of Necessary Party Affect an Interim Application?(f) Has the Appellate Court been Justified in interfering with the Trial Court’s Order Refusing Injunction?(g) What is the 3rd Defendant’s Role?(a) Do the Interlocutory Orders Bind? 43. In isolation, this question is ambiguous. Let us put this question in context. The parties to this Suit have prior litigation; it is pending. Incidentally, that litigation has been at the defendants’ behest and concerns the same iron ore.44. In the two suits they have instituted, the defendants have pleaded two things: (1) their agreement with the plaintiffs ended in 2006; (2) as to the ore extracted, the plaintiffs owed them about two crore rupees. After the exchange of notices, the plaintiffs paid that amount through cheques. The defendants did encash those cheques. Nevertheless, they sued. In those suits, too, they demanded about two crore rupees as due from the plaintiffs.45. Certain orders came to be passed in those suits and proceedings arising out of those suits, including contempt cases before this Court. No doubt, they are either interlocutory or issue-specific. That said, they are between the same parties and still have their relevance. And, most of all, in those suits, too, the dispute concerns the same iron ore. Under these circumstances, the conclusion is irresistible: the interim orders in one proceeding bind the same parties in other proceedings if the subject matter is the same.(b) Does the Previous Pending Litigation Impinges on this Suit? 46. As a corollary to the above discussion above, I must also note that the previous, pending litigation impinges on this Suit, lest it should become a dangerous proposition to hold that the parties must agitate the issues in each case de novo.(c) Have the Statutory Changes Altered the Parties’ Relationship or Affected their Rights? 47. The 2013 Rules have been framed under section 23 (c) of the Mines and Minerals (Development and Regulation) Act, 1957. They have come into force from the date of their publication in the Official Gazette— 17 October 2013. Rule 2 (j) defines "end-users" and Rule 2 (t) defines “leaseholder”. The 2nd defendant is the leaseholder, and the plaintiffs, prima facie, are neither leaseholders nor end-users.48. Rule 7 of the 2013 Rules bars “contracts for sharing of mineral or long term sale agreements”. According to this Rule,All contracts or agreements between leaseholders and end-users, traders, and so on, authorising "sharing of minerals … for transport, raising, processing or trading of mineral” shall be void from the date of publication of these Rules. Similarly, long term purchase contracts at a fixed price shall also come to an end from the date of publication of these Rules.(italics supplied)49. Here, the ore was extracted before 2006, and the Rules came into force in 2013. These Rules, indeed, are prospective. So the dispute concerns what was extracted long before the Rules were enforced.50. Under Rule 14 (1) of the 2013 Rules, only the mining leaseholder or end-user shall store mineral. As Rule 14 (2) mandates, all trading licenses given under the Goa (Prevention of Illegal Mining, Transportation and Storage) of Minerals Rules, 2004, shall cease to exist with the enforcement of these Rules. But traders shall be responsible for their acts of omission and commission under the Goa (Prevention of Illegal Mining, Transportation and Storage of Minerals) Rules, 2004. That said, sub-rule (6) allows all the traders authorised to store mineral under the 2004 Rules to produce documentary evidence for storing mineral under the 2004 Rules. It should be done in one month, lest they should vest with the Government. And all other mineral stored by unauthorised persons within the territory of Goa shall vest in the State.51. Indeed, as Rule 14 (8) declares, with the enforcement of 2013 Rules, “no person other than leaseholder or end-user shall be allowed to maintain a dump or stockyard”. From sub-rule (9), it is clear that an application for dump handling or claim to a dump can be made only by a leaseholder and by no other person.52. Besides Rules 7 and 14, the preamble to the 2013 Rules also declares that the Rules are prospective. Here, we cannot accuse the plaintiffs even of laches, for they have been embroiled in litigation from 2010. And that litigation was at the defendants’ behest. How the 2013 Rules affect the plaintiffs’ rights is a question of law the trial Court should determine in due course. We cannot prejudge the case; if we do, that prejudices the parties.53. First, we may note that until 2013, the defendants only complained that they had been short-changed. They demanded money from the plaintiffs. Besides, they never claimed the mineral dumps. Second, all the mineral—be it in the dumps 1 to 5 or in the dumps 1 to 6 —had been harvested, at least before 2013. In fact, it was even before 2010. The whole dispute centres on who should take it.54. In the proceedings arising out of the suits the defendants themselves instituted, both parties filed compromise terms. Based on those compromise terms, the High Court passed Order in Invitum, dated 14.01.2010, declaring that the plaintiffs are entitled to carry out, transport, lift, sell, export the ore lying in the Suit mines and to deal with the same in the manner they wish. In fact, clause (3) permits the plaintiffs “to carry out, transport, lift, sell/export all the Ore lying in the suit mine”. The impact of this Order in Invitum, especially clauses 3 and 4, are yet to be examined. Let us not forget the order is consensual and stands on a higher footing than a judicially imposed one, which alone is subjected to appeal or revision.55. In terms of the Order in Invitum, the plaintiffs transported the iron ore in stack nos.6 to 10. Thereafter, they wanted to transport the iron ore in stack no.1; then, the defendants filed two contempt petitions before this Court. This Court dismissed those petitions. In that process, it has referred to clause 3 of the Order in Invitum and observed thus: "[O]n a plain reading of this clause, it could not be said that the [plaintiffs] were directed not to lift ore from stack nos.1 to 5 and as such, the act of the [plaintiffs] in lifting ore from stack nos.1 to 5 cannot be said to be in breach of the consent terms”. Indeed, this Court has limited this observation to the contempt case. That means it does not amount to res judicata and neither party is estopped from arguing on the scope of the compromise in any other proceedings. Having said that, I must also note this Court’s observation still carries prima facie value until a different view is taken on the same issue.56. I may further note that the defendants wanted to prevent the plaintiffs from touching the stacks 1 to 5. Undeterred by their failure in the contempt cases, they have filed another application for an interim injunction in their pending suits. Through an order, dated 25.05.2011, the trial Court dismissed the defendant’s application. Aggrieved, the defendants filed two Appeals from Orders. In those Appeals, this Court has provided no interim relief, however.57. If the trial Court does not preserve the disputed ore until the dispute is resolved, it means the defendants may sell it. And they are all set to do it. Then, it amounts to their getting the relief in the plaintiffs' Suit though they could not succeed in their own Suit on the same point.(d) Which is the Better Course of Act: Preserving the Property or Allowing it to be Sold? 58. The mineral has been lying at the mining site for over a decade. 2010 onwards, the plaintiffs have been trying to transport it, but the defendants have been coming in the way. Now, for the last one year, it has been the other way round. The defendants are trying to sell, and the plaintiffs are coming in their way.59. An interlocutory order is to preserve the subject matter of the lis. That said, if the suitor can be adequately compensated pecuniarily, the Court does not injunct the adversary. Here, it is iron ore. Even if it is sold, either party can be compensated. True, in the earlier round of litigation, the defendants pleaded that the ore “is not an ordinarily available commodity in the open market and that compensation in terms of money would not be an adequate relief”. But that does not deter the Court to conclude otherwise.60. So I have asked the defendants (the petitioners here) to sell the iron ore and deposit 50% of the sale proceeds before the Court and provide a bank guarantee for the remaining 50%. They have agreed. But there arose a difficulty. The defendants agreed to deposit the amount @ Rs.500/- per metric tonne. According to them, that is the agreed price. That apart, they have told me that only regarding 5,000 metric tonnes, the deal has been completed. For the rest of the stock, only "third party interest" has been created. So they will deposit the proceeds whenever they sell a part of the stock.61. On the contrary, the plaintiffs have contended that the apparently agreed price is too low; this pricing is only a smokescreen intended for royalty purposes. So they insist that the ore fetches much higher price. Then, I told the plaintiffs to sell the iron ore and remit the proceeds on the same terms as the defendants had agreed. In reply, the plaintiffs informed me that to do so, they should now apply for permissions and licences. In the changed statutory scenario, though the 2013 Rules do not affect the stock existing before, still it is a consuming process. And, perhaps, judicial intervention, too, is needed. According to them, before they could complete all the process, the very Suit might get disposed of because it is a suit under the Commercial Courts Act.62. As a way out the plaintiffs wanted the defendants to deposit the sale proceeds according to the rates fixed from time to time by Indian Bureau of Mines. It is a multi-disciplinary government organisation under the Department of Mines, Ministry of Mines, Government of India. But the defendants have not agreed to this suggestion. Thus, the Court’s efforts to find a way out of the imbroglio have failed.63. From the record, I note the defendants secured most permissions and licences pending the Suit. It was in the face of their failure to injunct the plaintiffs in their own suits from transporting the ore. Even most agreements with the prospective purchasers were entered into pending the Suit. Therefore, this creation of 'third-party interest' is a lis pendens development.64. As the parties have not agreed to an amicable way of selling the mineral, the next option is to preserve it until the disposal of the Suit. First, for a mineral stacked for over a decade, its preservation until the Suit is disposed of causes no harm. Under the scheme of the Commercial Courts Act, the Suit must be tried in a time frame. So six months or one year cannot be regarded as fatal.65. That apart, between the same parties, litigation is pending on the same issue: who is entitled to the iron ore? If the defendants are not prevented from selling it, they achieve collaterally what they could not achieve in their pending suits directly. It does no

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t augur well for fair procedure.66. So I find justification in the Appellate Court’s granting injunction.(e) Does the Plea of Non-Joinder of Necessary Party Affect an Interim Application? 67. In this interlocutory application, the plaintiffs have confined the relief only to the defendants 1 and 2, not the third one. The interim application concerns the preservation of iron ore pending the Suit. While deciding the issue, the trial Court presupposes that the Suit is maintainable in its present form.68. If the defendants have any objection about the Suit's maintainability—say on account of non-joinder of a necessary party—it may take an appropriate step—such as applying under Rule 11 of Order 7, CPC—for non-suiting the plaintiff. It can be at any stage. Until there is an independent adjudication on the suit maintainability, there can be no collateral adjudication. Precisely for this reason, an order under Rule 11 of Order 7 CPC is a deemed decree as defined under section 2 (2) of CPC.69. Therefore, I hold that the trial Court has prematurely ruled on the issue of maintainability of the Suit on account of the alleged non-impleadment of a necessary party. That said, there is already an application for impleadment pending.(f) Has the Appellate Court been Justified in interfering with the Trial Court’s Order Refusing Injunction? 70. The trial Court has brushed aside all the interlocutory orders between the same parties. It has also conclusively ruled on the scope of Minutes of Order in Invitum that it only concerns the dumps at Serial Nos.6 to 10. Having accepted that the 2013 Rules are prospective, the trial Court has, however, held that they affect the plaintiffs’ rights. According to it, the Minutes of Invitum Order have become inexecutable. It has also held that the defendants’ permissions and licences, coupled with the Supreme Court’s directives, confer rights on the defendants and take them away from the plaintiffs.71. Curiously, the trial Court has held that the plaintiffs have already sought the same relief in their Contempt Case; they could have pursued that petition. But we must agree that contempt jurisdiction is not remedial; it is only corrective. The petitioner is only an informant; he gets no relief. According to the trial Court, the Order in Invitum is not final because the parties were given liberty to modify the terms; it is not on merits; it “was by consent of the parties”. Let me note a consensual order has its own legitimacy; its modification cannot be unilateral. That it is by consent of the parties begs the question. Even prima facie, I find it difficult to accept the trial Court’s ruling that the plaintiffs do not possess the mineral. Especially so, if we view the issue in the backdrop of the previous litigation, which is still pending. Thus, on more than one count, the trial Court’s order fails to pass judicial muster. And, I reckon, the Appellate Court has rightly interfered with that order.(g) What is the 3rd Defendant’s Role? 72. Throughout, the third defendant, a governmental agency or authority, has played an active role. Before this Court, as well as before the Courts below, the authority concerned has mounted a spirited defence in the defendants’ favour. But I feel the Government has no role in this dispute—a purely contractual dispute between two private parties.73. In Appeal From Order Nos.2 & 3 of 2010, at the Government’s behest, this Court has clarified that the private parties' arrangement will not affect the Government's rights. For this reason, I have not adverted to the 3rd defendant’s contentions.Result: 74. Under these circumstances, I find no grounds to invoke this Court’s supervisory jurisdiction and interfere with the Appellate Court’s order, dt.12.01.2021. So I dismiss the writ petition. No order on costs.I, nevertheless, urge the trial Court to proceed with the matter expeditiously, keeping in view the legislative mandate of the Commercial Courts Act, 2015, under which the suit is filed.