Madras High Court
M/S.Ani Chennai Exports Pvt Ltd vs K.P.Rajendran on 2 June, 2014
Author: M.Jaichandren
Bench: M.Jaichandren, M.Venugopal
THE HIGH COURT OF JUDICATURE AT MADRAS Dated:02.06.2014 Coram THE HONOURABLE Mr. JUSTICE M.JAICHANDREN AND THE HONOURABLE Mr. JUSTICE M.VENUGOPAL O.S.A.No.19 of 2014 *** M/s.ANI Chennai Exports Pvt Ltd., Represented by its Managing Director, Mr.Naresh Mahtani No.79, First Avenue, Rani Arcade Basement, Ashok Nagar, Chennai 600 083. ... Appellant/Applicant/Plaintiff V. 1.K.P.Rajendran 2.Kasi Viswanathan ... Respondents/Respondents/Defendants Prayer: Appeal filed under Order XXXVI Rule 1 of the Original Side Rules R/W. Clause 15 of the Letters Patent as against the judgment and order passed by the learned Single Judge in Application No.1388 of 2013 in C.S.No.349 of 2004 dated 12.11.2013. For Appellant : Mr.M.S.Seshadri For Respondents : Mr.N.S.Sivakumar JUDGMENT
(Judgment of the Court was delivered by M.VENUGOPAL,J.) The Appellant/Applicant/Plaintiff has preferred the present Original Side Appeal before this Court as against the Order, dated 12.11.2013, in dismissing the Application No.1388 of 2013, in C.S.No.349 of 2004, passed by the Learned Single Judge.
2.The Learned Single Judge, while passing the impugned order, in Application No.1388 of 201,3 in C.S.No.349 of 2004, on 12.11.2013 (filed by the Appellant/Applicant/Plaintiff), in paragraph Nos.6 and 7, has observed the following:
6.On the other hand, it is the submission of the learned counsel appearing for the respondents that the respondents have filed the criminal complaint under Section 138 of the Negotiable Instruments Act prior to the interim order granted by this Court and in the said complaint, the respondents made a reference with regard to the MOU dated 8.1.2004. Since in the said complaint a reference was made about the MOU dated 8.1.2004, while filing an application to vacate the interim order granted by this Court in M.P.No.1 of 2011 in Crl.O.P.No.16190 of 2011, they made a reference about the said MOU dated 8.1.2004. Otherwise, it is not the intention of the respondents to wilfully disobey the order of this Court.
7.I find some force in the said submission made by the learned counsel appearing for the respondents. Only if the disobedience is wilful, then notice could be ordered. It is the contention of the learned counsel appearing for the respondents that the MOU dated 8.1.2004 was already referred to in the complaint filed by the respondents under Section 138 of the Negotiable Instruments Act, which was filed prior to the interim order passed by this Court, which made them to make a mention about the MOU in the petition filed by them to vacate the interim stay granted by this Court in M.P.No.1 of 2011 in Crl.O.P.No.16190 of 2011. Absolutely, I do not find any wilful disobedience in mentioning the MOU in the petition filed by the respondents to vacate the stay granted by this Court in Crl.O.P.No.16190 of 2011. This application is devoid of merits etc.' and resultantly, dismissed the Application.
3.The Learned Counsel for the Appellant/Applicant/Plaintiff contends that the Learned Single Judge, in the impugned order, had not rendered a finding in regard to the fact that the Respondents/ Defendants suppressed the existence of the interim order of this Court dated 21.04.2004 when confronted with the submission of the Appellant in the Crl.O.P.No.16190 of 2011 that there exists an order of injunction, which was being violated.
4.According to the Learned Counsel for the Appellant/Applicant/ Plaintiff, assuming but not admitting that the Respondents were merely referring to the MoU dated 08.01.2004, the suppression of an interim order of this Court dated 21.04.2004 amounted to wilful disobedience. Added further, the said interim order dated 21.04.2004 was made absolute on 01.10.2009 and wilfully suppressing the order of this Court amounted to wilful disobedience of the order so passed and it clearly granted that the contents of the Memorandum of Understanding are free to be espoused.
5.The stand of the Appellant/Applicant/Plaintiff is that the Learned Single Judge had not appreciated that a reading of the Petition to vacate the interim stay clearly showed that the Respondents/ Defendants were relying on the MoU to vacate the stay granted in M.P.No.1 of 2011 in Crl.O.P.No.16190 of 2011.
6.Per contra, it is the submission of the Learned Counsel for the Respondents that prior to filing of the Civil Suit No.349 of 2004, the Memorandum of Understanding dated 08.01.2004 was the subject matter of statutory notice dated 16.02.2004 issued under Section 138 of the Negotiable Instruments Act, 1881 and culminated into criminal complaint. Moreover, the complaint under Section 138 and 141 of Negotiable Instruments Act was filed on 05.04.2004 and is pending on the file of the Learned XIV Metropolitan Magistrate, Egmore, Chennai in C.C.No.17994 of 2005. Later, the suit in C.S.No.349 of 2004 was transferred to the file of III Additional Judge, City Civil Court, Chennai and renumbered as O.S.No.11838 of 2010.
7.Advancing his arguments, the Learned Counsel for the Respondents/Defendants contends that the Applicant filed a petition for quash in Crl.O.P.No.13435 of 2009 and later the same was withdrawn on 01.02.2011. Subsequently, the Appellant/Applicant's son (co-accused) filed quash petition in Crl.O.P.No.16190 of 2011 and the said Crl.O.P. finally was dismissed on merits, on 19.11.2011.
8.Lastly, it is the plea of the Respondents/Defendants that the interim injunction granted by this Court is not restraining the Respondents from instituting or proceeding with the legal proceedings in Subordinate Court and that the injunction is not sought restraining any legal proceedings based on the Memorandum of Understanding dated 08.01.2004.
9.It is not in dispute that the Appellant/Applicant/Plaintiff filed C.S.No.349 of 2004 (O.S.No.11838 of 2010) in March 2004 seeking the relief against the Respondents for a declaration that the document termed as MoU dated 08.01.2004 between the Plaintiff and Defendants is illegal, null and void and therefore, not binding on the parties and for a permanent injunction restraining the Respondents/Defendants from in any manner invoking or relying upon the MoU dated 08.01.2004.
10.It comes to be known that the order of interim injunction was granted by this Court in O.A.No.356 of 2004 in C.S.No.349 of 2004 (filed by the Appellant/Plaintiff/Applicant) dated 21.04.2004. On 01.10.2009, the interim order of injunction restraining the Respondents therein, from in any manner relying upon or acting on the MoU dated 08.01.2004 was made absolute.
11.The main grievance of the Appellant/Applicant/Plaintiff is that the Respondents at the time of seeking vacation of interim stay granted in M.P.No.1 of 2011 in O.P.No.16190 of 2011 was privy and had knowledge of the order dated 01.10.2009 passed by this Court in O.A.No.356 of 2004 in O.S.No.349 of 2004 and the Respondents by deliberately violating the injunction order relied on MoU dated 08.01.2004 in their petition to vacate the interim stay dated 30.09.2011 in Crl.O.P.No.16190 of 2011. Also that, they had suppressed the ad-interim injunction granted by this Court on 21.04.2004 and more particularly, the order dated 01.10.2009 of this Court making the interim injunction absolute.
12.The complaint filed against the Appellant/Applicant/Plaintiff by the Respondents under Section 138 and 141 of the Negotiable Instruments Act was dated 04.04.2004 and filed on 05.04.2004 and the same was registered as C.C.No.17994 of 2005 on the file of the XIV Metropolitan Magistrate, Chennai.
13.It is to be pointed out that the provisions of Order 39 Rule 2A are penal in nature and that the disobedience must be proved like a charge in a Criminal Court. As a matter of fact, mere allegation of disobedience is not sufficient, in the considered opinion of this Court. The standard of proof i.e. Required for violation of disregard of an injunction order is that of a criminal case, since the said act of a violator itself ends in his detention in civil imprisonment.
14.At this juncture, this Court worth recalls and recollects the decision in Bhupinder Singh and Another V. Parmodh Singh and another, AIR 2008 Himachal Pradesh 3 at page 4, wherein in paragraph 9 and 11, it is held as follows:
9.As a matter of fact, the purpose of Rule 2-A of Order 39 is not to punish a person who has disobeyed the injunction order, but to enforce it. Only the wilful disobedience invites the wrath of the penal action as envisaged in the said provisions.
11.Order 39, Rule 2-A of the Code of Civil Procedure has the penal consequences, unless the knowledge of the order of the Court is proved, the breach thereof cannot be said to be wilful.
15.Also, this Court aptly points out that the power of the Court under Order 39 Rule 2A of the Civil Procedure Code is punitive and akin to the power to punish for civil contempt in Contempt of Courts Act, 1971. Indeed, it should be exercised with great care and caution, as opined by this Court.
16.It is to be borne in mind that under Order 39 Rule 2A of the Civil Procedure Code cannot be passed either on suspicion or as a matter of course. To put it succinctly, there ought to be clear proof that the order to be obeyed was clear, unambiguous and with full knowledge of the content of the order it was disobeyed.
17.The onus is heavily on the individual who alleges disobedience to establish the ingredients of the offence beyond reasonable doubt. In fact, a Court of Law is empowered under Order 39 Rule 2A of the Civil Procedure Code to take away the liberty of a person and order detention of the person who violates the order in Civil Prison and this power is undoubtedly penal in character, in the considered opinion of this Court
18.As far as the present case is concerned, it is to be pertinently pointed out that the complainant, viz., Sri Sankar Fabrics, represented by its K.P.Rajendran, in C.C.No.17994 of 2005 on the file of the XIV Metropolitan Magistrate Court, Chennai, in paragraph 3, had referred to a Memorandum of Understanding that was entered into between the parties on 08.01.2004 and the same was made mention of in an Application to vacate the interim order granted by this Court in M.P.No.1 of 2011 in Crl.O.P.No.16190 of 2011. Therefore, it is the stand of the Respondents/Defendants that they had no intention to disobey the order of this Court.
19.It is true that the purpose of Order 39 Rule 2A of the Civil Procedure Code is not to punish a person who had disobeyed the injunction order, but to enforce it only wilful disobedience invites the wrath of penal action as contemplated in the said provision. In the present case on hand, the Criminal Complaint was filed before the XIV Metropolitan Magistrate Court, Chennai on 05.04.2014. The interim order of injunction was granted by this Court on 21.04.2004 in O.A.No.356 of 2004 in C.S.No.349 of 2004 in restraining the Respondents/Defendants from in any manner relying upon or acting the MoU dated 08.01.2004. The said interim order was made absolute on 01.10.2009. Inasmuch as the Respondents had referred to the MoU dated 08.01.2004 (entered into between the parties) at the time of filing of the complaint before the Criminal Court on 05.04.2004, at this stage, it is to be borne in mind that the said filing of the complaint was earlier to the grant of interim injunction ordered by this Court on 21.04.2004. As a matter of fact, mere mention of MoU dated 08.01.2004 or a passing/unintentional reference made by the Respondents/Defendants in the petition to vacate the interim stay granted by this Court in M.P.No.1 of 2011 in Crl.O.P.No.16190 of 2011 cannot be characterised as deliberate/wilful disobedience or violation of the order passed by this Court in a cavalier or brazen manner.
20.In short, the Appellant/Applicant/Plaintiff has not prima facie made out a case to the subjective satisfaction of this Court that the Respondents/Defendants had deliberately and wilfully mentioned about the Memorandum of Understanding dated 08.01.2004 in the petition to vacate interim stay granted by this Court in M.P.No.1 of 2011 in Crl.O.P.No.16190 of 2011 and thereby violated the order of interim injunction granted by this Court on 21.04.2004 in O.S.No.356 of 2004 in C.S.No.349 of 2004. Viewed in that perspective, on going through the impugned order passed by the Learned Single Judge on 12.11.2013 in Application No.1388 of 2013 in C.S.No.349 of 2004, this Court is of the considered opinion of this Court that the same does not suffer from any material infirmities or patent illegalities in the eye of law. Resultantly, the Original Side Appeal fails.
21.In the result, the Original Side Appeal is dismissed, without costs. Consequently, the order passed by the Learned Single Judge, in Application No.1388 of 2013, dated 12.11.2013, is affirmed for the reasons assigned by this Court in this Appeal.
(M.J. J.) (M.V. J.)
02.06.2014
Index :Yes / No
Internet :Yes / No
Sgl
M.JAICHANDREN,J.
AND
M.VENUGOPAL,J.
Sgl
O.S.A.No.19 of 2014
02.06.2014