Calcutta High Court
Intime Spectrum Registry Ltd. vs Mcs Ltd. on 12 January, 2007
Equivalent citations: 2007(2)CHN109
Bench: Pinaki Chandra Ghose, Biswanath Somadder
JUDGMENT
1. This instant appeal is filed by the appellants/defendants aggrieved by the ad interim Order No. 2 dated 21st December, 2006 passed by the Civil Judge (Sr. Division), 4th Court, Alipore in Title Suit No. 167 of 2006.
2. A perusal of the said order dated 21st December, 2006 shows that it was passed exparte and notice was directed to issue upon defendants asking them to show cause within 10 (ten) days from the date of the receipt thereof as to why the prayer for temporary injunction as sought for by the plaintiff shall not be granted. The ex parte order is in the following terms:
that the defendant No. 1 is restrained from undertaking or signing any new contract of any nature pertaining to the business of Registrar to an issue and share transfer agent and acting in furtherance of any new contract of the like nature after the said agreement 18.8.2006 and creating any encumbrance over moveable properties and/or the business of the defendant No. 1 and making any press release or public statement or the like in relation to the said business transfer agreement dated 18th August, 2006.
Both parties are restrained from dealing with the existing share of the defendant No. 1 in any manner till 15th January, 2007.
Issue notice calling upon the defendants to show cause within 10 days from the date of the receipt as to why the prayer for temporary injunction shall not be allowed.
Requisite at once.
Plaintiff shall comply with the provisions of Order 39 Rules 3(a) and (b) of the CPC.
The Receiver application filed by the plaintiff today would be heard after issuing notice to the defendants in this regard. So issue notice in respect of the said application also.
3. The question before us is whether the said ex parte interim order should be vacated.
4. From the submissions made at the Bar and also from perusal of the appeal it is apparent that the order under appeal is ex parte ad interim order, the injunction application is still pending consideration before the learned Court below.
5. A question, therefore, arises whether the Court should hear out the appeals while the main application is pending adjudication before the learned Court below. It is the submission of Mr. Jayanta Mitra, learned senior Advocate appearing in support of this appeal that the order under appeal is passed in exercise of power under Rules (1) and (2) of Order 39 and the same is appealable in terms of Order 43 Rule 1.
6. Mr. Mitra also drew our attention to Order 39 Rule 3 which is reproduced hereunder:
3. Before granting injunction, Court to direct notice to opposite party.-- The Court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party:
[Provided that, where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant--
(a) to deliver to the opposite party or to send to him by registered post, immediately after the order granting the injunction has been made, a copy of the application for injunction together with--
(i) a copy of the affidavit filed in support of the application;
(ii) a copy of the plaint; and
(iii) copies of documents on which the applicant relies, and
(b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.]
7. He further submitted that the Court should record the reasons for its opinion that the object of granting of injunction would be defeated by delay. In the instant case he submitted that no notice had been served upon the appellants/defendants and further no reasons have been given by the Court in passing such ex parte interim order. Question was put forward before the Court by him that whether such ex parte ad interim order can be passed without giving any reason by the Court in the order.
8. He also drew our attention to the petition filed before the learned Trial Court below which has been annexed to the petition filed before us and submitted that the plaintiff/respondent before the learned Trial Court below failed to show reason of urgency and to get such ex parte ad interim order on the eve of the X-Mass Vacation i.e. 21st December, 2006. He further submitted that from the said petition they have failed to show that the defendant/appellant herein has failed to perform their obligation. Mr. Mitra further submitted that the plaintiff/respondent failed to make out a case to have such ex parte ad interim order on that date.
9. Mr. Chatterjee, on the contrary, drew our attention to paragraphs and in particular, to the letters addressed by them as well as by the appellants and further drew our attention to the minute of the meetings held between the parties on 19th December, 2006 and submitted that the plaintiff/respondent has been able to make out a case to obtain such ex parte ad interim order as on that date.
10. Mr. Bachawat, learned Senior Advocate appearing on behalf of some of the respondents supporting the appellants pointed out before us that the agreement itself is determinable and till date there is no letter has been issued by the plaintiff/respondent in determining the said contract. Hence, the suit is not maintainable under the Specific Relief Act, 1963.
11. On the contrary, it has been stated before us by Mr. Chatterjee appearing in support of this appeal that the allegations made in the plaint and the petitioner at that point of time are to be taken as true. He further drew our attention to the petition filed before the learned Trial Court and contended before us that there is enough materials to show that the plaintiff would suffer irreparably if the injunction was not passed by the learned Court at that point of time. Mr. Chatterjee also relied upon a decision (Vijaya Minerals Pvt. Ltd. v. Bikash Chandra Deb).
12. Mr. Saktinath Mukherjee, learned senior Advocate appearing on behalf of some of the respondents also contended before us that an ex parte unreasoned interlocutory order cannot be stated to be void which is sought to be achieved by the plaintiff in protecting himself against the irreparable injury. He also drew our attention to the decisions reported in 1999 (1) CHN 617 (NEPC Micon Ltd. v. Magma Leasing Ltd. and Anr.) and 2000 (2) CHN 856 (Jitesh Pandey v. Urmilata Sinha and Ors.) and contended that if a party by way of an appeal filed a petition under Order 39 Rule 4 of the Code, he must be prepared to accept all statements made in the application for temporary injunction to be true and he should persuade the Appellate Court that even the allegations of the other side are true, the learned Trial Court ought not to have granted an ad interim order of injunction. He also relied upon a Division Bench decision of this Court (Muktakesi Dawn and Ors. v. Haripada Mazumdar and Ors.) in support of such contention so as Mr. Chatterjee relied upon the said decision and Mr. Mukherjee relied upon an unreported decision of His Lordship M.H.S. Ansari, J. in FMAT No. 485 of 2004 with CAN No. 1220 of 2004 & CAN No. 1751 of 2004 in Info Edge (India) P. Ltd. v. Sumanta Bhattacharya.
13. We have considered the facts of the case and the materials on records which were placed before us and the decisions cited before us. The Hon'ble Division Bench of our High Court has specifically dealt with the matter in NEPC Micon Ltd. v. Magma Leasing Ltd. and Anr. reported in 1999 (1) CHN 617 where the Hon'ble Division Bench has held as follows:
Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shiv Kumar Chadha v. Municipal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:
'The requirement for recording the reasons for grant of ex parte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed why instead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the Court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the Court about the gravity of the situation and Court has to consider briefly these factors in the ex parte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the Court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 of Order 39.' This view was reiterated in Morgan Stanley Mutual Fund v. Kartick Das (supra).
14. Their Lordships also held as follows:
To hold that an ex parte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protecting himself against irreparable injury might be defeated by the failure of the Court to act in terms of Order 39 Rule 3--a factor over which no litigant can have any control.
15. The Hon'ble Division Bench further held as follows:
This is the reason why perhaps the, Division Bench of this Court in Muktakesi Dawn v. Haripada Mazumdar (supra) said:
It is true that the relevant proviso to Rule 3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the Old Privy Council decision in Gunga Gobind Mundal 1867(11) Moo Ind App 345 at 368, operate as a check against a too easy granting of ex parte injunction and may inspire confidence and disarm objection. And secondly, since an appeal lies against such ex parte order of injunction. Such record of reasons would go a very long way to help the Appellate Court to ascertain as to whether the discretion granted under the Rule to grant ex parte injunction has been properly exercised. But even then, we are inclined to think that the mandate in the proviso to Rule 3 to record reasons is not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. If there are materials on record to show that there were good reasons to pass an ex parte injunction order, the order cannot be set at naught solely on the ground that the Court, while making the order, did not record the reasons for proceeding ex parte.
16. We have perused the order so passed by the learned Trial Court. It appears that the learned Trial Court after recording the facts has specifically pointed out as follows:
The situation appears to be urgent and in the absence of any ad interim injunction order the plaintiff is likely to suffer irreparable loss and injury.
17. Therefore, it appears to us that the learned Trial Court below has duly dealt with the matter and the reasons given therefor for not issuing any notice at the time of passing of such ex parte ad interim order in favour of the plaintiff and thereby in our opinion, the said order duly gave reasons for granting such ad interim ex parte order in the situation which placed before the learned Trial Court below. Therefore, we do not find any reason to hold that the said order did not comply with Order 39 Rule 3 of the Code of Civil Procedure. It appears to us that the learned Trial Court has referred the circumstances pointing to such urgency. Therefore, we do not find that the said order suffers from any illegality.
18. From the submissions made at the bar and the decisions cited before us a similar contention was raised and considered by the Hon'ble Apex Court in A. Venkatasubbiah Naidu v. S. Chellappan and Ors. . The Hon'ble Supreme Court in that case construed the provisions in Rule 3 of Order 39 and also the consequences that would flow if the party who secured the order does not comply with the duties he is required to perform. Thereafter, the Court considered the question of the consequences, if any, on account of the Court failing to pass final orders within 30 days as enjoined by Rule 3A of the Code of Civil Procedure.
19. After considering the said decision and the facts as placed before us and after examining the materials on records and the cases cited before us by the learned Counsel for the parties, we feel that the appellant should not have approached this Court during the pendency of the said application before the learned Trial Court below. The appellant could have filed an application under Order 39 Rule 4 before the said learned Trial Court for vacating the said interim order so passed by the learned Trial Court below. In the light of the facts of this case we are of the view that the appellant should not have approached this Court during the pendency of the said application and since the matter is also fixed before the Court on 15th January, 2007, we do not intend to interfere with the order since we do not find that there is any illegality in the said order. Accordingly, we dismiss the said application and also the appeal with the following direction:
The learned Trial Court should pass final orders on the interlocutory application filed by the plaintiff on merits and in accordance with law. We hereby clarify that we have not gone into the merits of the main controversy and all questions and kept open and the application before the learned Court below shall be disposed of in accordance with law without being influenced by any observation made by this judgment and/ or order.
20. Let a plain copy of this order duly countersigned by Assistant Registrar (Court) be given to the learned Advocates for the respective parties on the usual undertakings.