Judgment:
Bhaskar Bhattacharya, J.
1. All these four appeals were heard analogously as those are interlinked and common questions of law are involved in these appeals. The facts leading to filing of these four appeals may be summed up thus:
(a) On 18th May, 2005, a suit being Title Suit No. 807 of 2005 was filed by one Jagadish Prasad Jajoo in the Third Bench of the City Civil Court at Calcutta wherein M/s. MSTC Ltd. was made defendant No. 1, New Central Jute Mills Ltd. was made defendant No. 2 and Sakura Commercial Private Ltd. was made defendant No. 3. The prayer made in the suit was for declaration that the defendant No. 1 was obliged to accept quotation only from the plaintiff and other empanelled suppliers detailed in paragraph 9 with further prayer for declaration that the empanelment of the defendant No. 3 was illegal and inoperative and for permanent injunction restraining the defendant Nos. 1 and 2 from placing any order for supply of raw jute to any other persons than the empanelled suppliers as mentioned in paragraph 9 of the plaint.
(b) In paragraph 9 of the plaint, the following persons were described as the empanelled suppliers:
(i) Cube Fintex (P) Ltd. (plaintiff of Title Suit No. 5488 of 2008);
(ii) Konica Traders (P) Ltd. (plaintiff in Title Suit No. 4402 of 2008);
(iii) Ramesh Trading Co. (plaintiff);
(iv) Bhanwari Lal Rajendra Kumar (plaintiff in Title Suit No. 1286 of 2008);
(v) Subash Credit Capital Ltd. (plaintiff in Title Suit No. 2961 of 2008);
(vi) Jingle Sales Ltd.;
(vii) Niharika Consultancy (P) Ltd.
(c) In the said suit, an interim order was granted on May 20, 2005 restraining the defendant Nos. 1 and 2 from placing any order of supply of raw jute to anyone other than the seven empanelled suppliers, mentioned above. Such interim order was vacated on May 28, 2008 after contested hearing holding that Sakura is an empanelled supplier. Being dissatisfied, the Jagadish Prasas Jajoo filed an appeal before this Court being F.M.A.T. No. 560 of 2008 which has since been renumbered as F.M.A No. 720 of 2008.
(d) The second suit being Title Suit No. 1286 of 2008 was filed on 9th April, 2008 by Narendra Kumar Toshniwa, the proprietor of Bhanwari Lal Rajendra Kumar and all the three persons mentioned above, namely, MSTC Ltd., New Central Jute Mills Ltd. and Sakura Commercial Private Ltd. were made defendants to such suit. In the said suit, the seven persons, mentioned earlier, were shown to be empanelled suppliers. In the said suit, an ex parte order of injunction was granted restraining MSTC from placing any order to the suppliers not empanelled as on 9th April, 2008. An application for withdrawal of the suit was filed and allowed ex parte and the suit was dismissed.
(e) The third suit being Title Suit No. 2961 of 2008 was filed on 25th July, 2008 in the Seventh Bench of the City Civil Court at Calcutta by Subash Credit Capital Ltd. and the parties were same as in Title Suit No. 1286 of 2008. In the said suit, ex parte order of injunction was granted on 25th July, 2008. Against the said order, an appeal being F.M.A.T. No. 1268 of 2008 has been filed which has since been renumbered as F.M.A No. 1584 of 2008. In that appeal, a Division Bench of this Court has passed an interim order to this extent that the said order will not be binding upon Sakura Commercial Private Ltd.
(f) The fourth suit being Title Suit No. 4402 of 2008 was filed on 26th September, 2008 by Konica Traders Pvt. Ltd. making all the three persons who were parties in Title Suit No. 807 of 2005, Title Suit No. 1286 of 2008 and Title Suit No. 2961 of 2008 as defendants. In that suit also, the seven suppliers, as mentioned earlier, were claimed to be the seven empanelled suppliers and according to the statement made in paragraph 11 of the plaint, the defendant No. 3, namely, Sakura Commercial Private Ltd. was blacklisted. In this suit, an ex parte injunction was granted on 3rd October, 2008 and against such order, Sakura Commercial Private Ltd. has preferred an appeal being F.M.A.T. No. 1649 of 2008. Subsequently, on January 30, 2009, the learned Trial Judge having further extended the earlier order of ad interim injunction, the Sakura Commercial Private Ltd. has preferred another appeal being F.M.A.T. No. 212 of 2009.
2. In all these appeals, the same question that falls for determination is whether the learned Trial Judge was justified in granting an ad interim order of injunction restraining the MSTC and New Central Jute Mills from taking supply of raw jute from any other person than the plaintiff and the empanelled suppliers. The common case made out by the plaintiff in all the suits was as follows:
(1) MSTC invited applications for empanelment of raw jute suppliers for the purpose of supplying raw jute in the month of March, 2004. It was given out in the said advertisement that an approved panel of few raw jute suppliers would be prepared after enquiry and scrutiny and it was a condition precedent that short-listed raw jute suppliers would be required to deposit interest-free earnest money deposit of Rs. 10 lakh within seven days from the date of such short listing for empanelment. According to the plaintiff in all these suits, after short-listing, the MSTC intimated the plaintiff to deposit the interest free EMD of Rs. 10 lakh and the plaintiff deposited the said amount but the defendant No. 3, Sakura Commercial Private Ltd. was not short-listed in June/July, 2004 and was not asked to deposit any amount. According to the plaintiff, seven persons were empanelled. Subsequently, the plaintiff came to know that the defendant No. 3, Sakura Commercial Private Ltd., was purportedly short-listed in a backdoor process at the instance of some influential quarters behind the back of the plaintiff and the other empanelled suppliers long after the short-listing and the process of empanelment was over and EMD of Rs. 10 lakh was paid by Sakura Commercial Private Ltd. long after the stipulated period.
(2) In other words, the contention of the plaintiffs in these suits was that the defendant No. 3 was not entitled to be considered for supply of raw jute to New Central Jute Mills by submitting quotation and the defendant No. 1 was not competent to invite the defendant No. 3 for submission of quotation along with other seven empanelled suppliers who, according to the plaintiff, are the only lawful empanelled suppliers.
3. On the aforesaid allegations, in all these four suits the plaintiffs prayed for injunction restraining the MSTC from inviting quotation from the defendant No. 3 or any person other than those empanelled supplier.
4. It appears from record that in the first suit, on contested hearing the learned Trial Judge vacated the interim order with the finding that, even if the defendant No. 3 was illegally empanelled, such fact did not infringe any of the rights of the plaintiffs. Against such order, the plaintiff therein, viz. Jagadish Prosad Jajoo, has preferred F.M.A. No. 720 of 2008 and the other three appeals have been filed by Sakura Commercial Private Ltd.
5. Therefore, the only question that arises for determination in these appeals is whether the plaintiff, an empanelled supplier of raw jute, can get an order of injunction restraining the MSTC from inviting tender from Sakura Commercial Private Ltd. on the allegation that its alleged empanelment was not proper.
6. After hearing the learned Counsel for the parties and after going through the materials on record, we find that in the condition of empanelment there is no assurance given by MSTC limiting the number of the empanelled suppliers to a particular one. All that is provided is that among the empanelled suppliers, quotation will be invited and the lowest bidder would be given the order for supply. Even any minimum amount of supply to any empanelled supplier has not been assured by the said tender. By mere empanelment, a party thus gets a mere opportunity of contesting with other empanelled suppliers for each particular transaction of supply and the lowest bidder gets the order.
7. In our opinion, the terms of empanelment not having put any obligation upon MSTC to restrict the empanelled supplier to a particular number nor having assured the empanelled supplier to any minimum amount of supply, an empanelled supplier does not get any right to contend that only seven persons should be empanelled or that the MSTC had no right to empanel any additional supplier. Even if we assume for sake of argument that Sakura Commercial Private Ltd. was illegally empanelled, for such empanelment, the right of the plaintiff, the other empanelled supplier, has not been curtailed in anyway as the plaintiffs have still right to bid for every transaction and such right has not been taken away. The position would have been different if for an alleged deficiency, the plaintiff's empanelment was rejected but the other was empanelled having selfsame deficiency. In that case, the plaintiff could allege violation of Article 14 of the Constitution of India, the MSTC being a State within the meaning of Article 12 of the Constitution of India. But by mere empanelment of additional person, the plaintiff's right to participate is in no way affected and, therefore, the plaintiff has no cause of action of filing the suit for the empanelment of the defendant No. 3 in the panel even if we assume for the sake of argument that such empanelment was wrong.
8. In order to maintain a suit, the plaintiff must prove that a right to sue has accrued in his favour. In our judgment, there is no right to sue until there is an accrual of the right asserted in the suit, and its infringement, or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted: Bolo v. Koklan : 57 Ind App 325 at p. 331 : AIR 1930 PC 270 at p. 272. A plaintiff cannot file suit alleging that by the action of the defendant, although none of his rights is infringed, yet, somebody else's right is going to be affected and such right of the third party should be protected. (See: Calcutta Swimming Club v. Lalit Singh and Ors. reported in 2009(2) CHN 379).
9. Mr. Das Gupta, the learned senior advocate appearing on behalf of the respondent in F.M.A.T No. 1649 of 2008 and Mr. Mitra, the learned Senior Advocate appearing on behalf of the appellant in F.M.A.T No. 720 of 2008 strenuously contended before us by relying upon the decisions of the Supreme Court in the case of Nagar Nigam, Meerut v. Al Faheem Meat Export (P) Ltd. reported in (2006) 13 SCC 382 and Tata Cellular v. Union of India reported in (1994) 6 SCC 651 that MSTC being a 'state' within the meaning of Article 12 of the Constitution of India should act fairly and thus, could not invite Sakura Commercial Private Ltd. to participate in the auction. The fact that MSTC is a 'state' within the meaning of Article 12 of the Constitution of India and is required to respect Article 14 thereof is not in dispute. But the question is whether the plaintiff has locus standi to challenge the short-listing of Sakura when by such short-listing none of the rights of the plaintiffs to participate in the process of auction has been infringed. In our opinion, by the offer of short listing, the MSTC not having assured any of the short listed party to limit the list to a particular number, the plaintiffs cannot grumble that the MSTC has no right to extend the list any further. In the case of Sai Chalchitra v. Commissioner reported in (2005) 3 SCC 683, another decision cited by the learned advocates for the respondent, a licence was granted to a competitor in same business to run video parlour in violation of statutory rule. In such circumstances, a two-Judge- Bench of the Apex Court held that the writ-petitioner had the locus standi to challenge the illegal action. In the case before us, there is neither any legal nor is any contractual right existing in favour of the plaintiff against the MSTC for restraining it from appointing further supplier by short listing. Thus, the said decision has no application to the facts of the present case. Moreover, it will not be out of place to mention that in Nagar Rice and Flour Mills v. N.T. Gowda reported in : AIR 1971 SC 246, a three-Judge-Bench of the Apex Court, it was held that a rice mill owner had no locus standi to challenge under Article 226 of the Constitution of India, the setting up of a new rice mill by another - even if such setting up be in contravention of Section 8(3)(c) of the Rice Milling Industry (Regulation) Act, 1958 - because no right vested in such an applicant was infringed. In the case of Sai Chalchitra (supra), attention of the Bench was not drawn to the earlier three-Judge-Bench decision of the Court in the case of Nagar Rice and Flour Mills (supra).
10. We, therefore, prima facie, do not find any cause of action for the plaintiffs to file these suits when they have failed to establish any legal right in their favour which had been infringed by the empanelment of Sakura even if such empanelment is wrong.
11. We, consequently, find that the learned Trial Judge erred in law in entertaining the application for injunction and granting ad interim injunction in favour of the plaintiff whose right was in no way affected by empanelment of Sakura Commercial Private Ltd. Similarly, in F.M.A. No. 720 of 2008, the interim order has been rightly vacated by the learned Trial Judge.
12. We, therefore, set aside all the orders impugned in these appeals other than F.M.A. No. 720 of 2008 and dismiss the applications filed by the plaintiffs for injunction in the different suits mentioned above on the ground that the plaintiff failed to prove prima facie cause of action for filing the suit. Consequently, the balance of convenience and inconvenience is also in favour of refusing the injunction. If we now restrain the defendant No. 3 from participating in the process but ultimately the suits are dismissed it will be the defendant No. 3 who will suffer immense amount of damages which cannot be even ascertained so easily; on the other hand, even if the suits ultimately succeed, by mere participation of the defendant No. 3, the plaintiff will not suffer any loss if it becomes the lowest bidder.
13. We, therefore, allow all the appeals other than F.M.A. No. 720 of 2008 and set aside the orders impugned therein by rejecting the application for injunction filed by the different empanelled suppliers who figured as the plaintiffs. So far as F.M.A. No. 720 of 2008 is concerned, we dismiss the same and approve the order impugned therein.
14. The appeals are, thus, disposed of and the applications for injunction filed in those suits are dismissed. We make it clear that our observations mentioned above are all tentative for the purpose of disposal of the application for temporary injunction and will not be binding upon the parties or the Courts at the time of disposal of the suits on merit.
15. In the facts and circumstances, there will be, however, no order as to costs.
Bhaskar Bhattacharya, J.
16. I agree.