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Madhya Pradesh High Court

M/S Satnam Filling Station vs Hindustan Petroleum Corporation ... on 1 December, 2021

Author: Vivek Agarwal

Bench: Vivek Agarwal

                                                                             1                                       MP-4306-2021
                                            The High Court Of Madhya Pradesh
                                                      MP No. 4306 of 2021
                                        (M/S SATNAM FILLING STATION Vs HINDUSTAN PETROLEUM CORPORATION LIMITED)


                                  Jabalpur, Dated : 01-12-2021
                                       Shri Rajesh Pancholi, learned counsel for the petitioner.

                                       Shri Anoop Nair, learned counsel for the respondent.

Petitioner has filed this miscellaneous petition under Article 227 of the Constitution of India being aggrieved of order dated 22/10/2021 passed by learned District Judge (4th) Jabalpur, whereby learned District Judge (4th) Jabalpur has refused to entertain an application under Order 39 Rule 3 read with section 151 of C.P.C and has fixed the case for bye party hearing.

Petitioner's contention is that petitioner had entered into an agreement for road transport of bulk petroleum products and in pursuance of that agreement, he was carrying out his duties in most diligent and faithful manner, when a show-cause notice was issued to him in April, 2021, which was cryptic on face. Thereafter he had filed reply to the show-cause notice on 30/06/2021. Thereafter vide order dated 20/08/2021 issued by the respondent, he has been black listed for a period of 2 years.

It is submitted that impugned order is violative of principles of natural justice and also that petitioner has been made to suffer and there is inherent violation of provisions contained in Article 19 and 21 of the Constitution. However Shri Rajesh Pancholi, learned counsel for the petitioner admits that there is a clause for arbitration in the agreement and accordingly petitioner had moved an application for arbitration along with application under section 9 of Arbitration and Conciliation Act. He submits that along with application under section 9 of Arbitration and Conciliation Act, petitioner had also moved an application under Order 39 Rule 3 of C.P.C seeking ex parte ad interim injunction on the impugned order dated 20/08/2021, which has been arbitrary rejected.

Shri Anoop Nair in his turn submits that merely rejection of the application under Order 39 Rule 3 of C.P.C has not caused any prejudice to interests of the petitioner. He submits that substantive provision contained in Order 39 Rule 3 C.P.C itself provides that before granting injunction, court has to issue notice to the opposite party. However there is proviso below Rule 3, which provides that in case the court proposes to grant an injunction without giving notice of the application to the opposite party, the court shall record the reasons for its opinion for the object of granting the injunction would be defeated by delay, and require the applicant to do as are mentioned in sub clause (a) and (b).

2 MP-4306-2021 After hearing learned counsel for the parties and going through the record, it is evident that the purpose of injunction is to remedy a wrong.

Law is well settled as laid down in the case of Hari Vs. Secretary of State of India, (1908) ILR 27 Bom 424, wherein it is held that granting of ex parte injunctions is the exercise of very extraordinary jurisdiction, and therefore, the time at which the plaintiff had first notice of the fact complained of will be looked at very carefully in order to prevent an improper order being made against a party in his absence and if the applicant has acquiesced for sometime it will not be granted.

It is held in the case of H. Bevis & Co. Vs. Ram Behari & ors, AIR 1951 All 8 that where the application for ex parte injunction is not bona fide, the injunction should not be granted.

In case of M/s Model Press (P) Ltd. Vs. Delhi Municipal Corporation & another, AIR 1978 Delhi 44 and so also in the case of H. Bevis (supra), it is held that for grant of an ex parte ad interim injunction, delay caused by the issue of notice must be such as would defeat the object of injunction, e.g. where the building is going to be demolished or the status of land would be irrevocably changed. It is further held that court should have some intimation of the eminent threat which would be defeated by the service of notice in case of ex parte injunction is not granted. Ex parte injunction should not be issued as a matter of routine.

In the present case, petitioner was black listed vide order dated 20/08/2021. He filed an application for arbitration and that claim is still pending in which an application for ex parte injunction has been denied and case was fixed for bye party hearing as is evident from the impugned order.

In the case of Dalpat Kumar & Another versus Prahlad Singh & Others AIR 1993 SC 276, the Supreme Court has held that before granting an order of ex-parte injunction satisfaction that there is a prima facie case by itself is not sufficient. The Court further has to satisfy that non-interference by the Court would result in irreparable injury to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that injury must be a material one, namely, one that cannot be adequately compensated by way of damages. The third condition also is that balance of convenience must be in favour of granting injunction.

I do not perceive any illegality in the impugned order of rejection of the application under Digitally signed by TARUN KUMAR SALUNKE Date: 2021.12.04 11:04:20 IST 3 MP-4306-2021 Order 39 Rule 3 of C.P.C inasmuch as petitioner's right can still be protected after giving an opportunity of hearing to the opposite party as and when application under section 9 of the Arbitration and Conciliation Act is taken up for consideration and prima facie the reason which has been mentioned by the learned trial court that after lapse of more than 2 months time when impugned order was passed application has been filed thus there appears no urgency to grant ex parte injunction to the petitioner cannot be faulted with either in it's reasoning or logic, calling for interference. Therefore, petition fails and is dismissed.

Certified copy as per rules.

(VIVEK AGARWAL) JUDGE tarun Signature Not Verified SAN Digitally signed by TARUN KUMAR SALUNKE Date: 2021.12.04 11:04:20 IST