Orissa High Court
Kotak Mahindra Bank Ltd vs Arss Infrastructure Projects Ltd.& ... on 3 August, 2021
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 202 of 2021
Kotak Mahindra Bank Ltd. .... Petitioner
Mr. Ramachandra Panigrahy,
Advocate
-versus-
ARSS Infrastructure Projects Ltd.& .... Opp. Parties
another
Mr. S.P. Mishra, Senior Advocate
along with Mr. Amit Pattnaik, Advocate
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 03.08.2021 06. 1. This matter is taken up through hybrid mode.
2. Heard Mr. Ramachandra Panigrahy, learned counsel for the Petitioner and Mr. S. P. Mishra, learned Senior Advocate being assisted by Mr. Amit Pattnaik, learned counsel for Opposite Parties.
3. The Petitioner in this CMP seeks to assail order dated 22nd March, 2021(Annexure-1) passed by learned District Judge, Khordha at Bhubaneswar in I.A. No.1 of 2021 (arising out of FAO No.22 of 2021).
4. It is submitted by Mr. Panigrahy, learned counsel for the Petitioner that assailing the proceeding initiated in terms of Master Circular of willful defaulters issued on 1st July, 2015 by the Reserve Bank of India, the Opposite Party-Company has filed Civil Suit No.161 of 2021, which is pending before learned Civil Judge (Senior Division), Khordha at Bhubaneswar. Along with the plaint, the Opposite Party-Company filed I.A. No.1 of 2021 under Order XXXIX Rules 1 and 2 read with Section 151 // 2 // CPC. Learned Civil Judge (Senior Division), Bhubaneswar, on consideration of rival contentions of learned counsel for the parties and materials on record, vide its order dated 2nd March, 2021 (Annexure-3) dismissed the said application against which the Opposite Party-Company filed FAO No.22 of 2021 under Order XLIII Rule 1 (r) CPC. Along with the memorandum of appeal, Opposite Party-Company filed an application praying, inter alia to stay operation of the order dated 2nd March, 2021 passed in IA No.1 of 2021 under Annexure-3.
4.1 Learned District Judge, Khordha at Bhubaneswar, taking into consideration the rival contentions of learned counsel for the parties and materials on record, vide its order dated 22nd March, 2021 (Annexure-1) stayed operation of order dated 2nd March, 2021 under Annexure-3 till disposal of the appeal. It is against the said order under Annexure-1, the Petitioner-Bank has filed this CMP.
5. It is argued by learned counsel for the Petitioner that the learned District Judge, while adjudicating I.A. No.1 of 2021. came to hold as follows:-
".....Since prima facie it is noticed that order of the committee was communicated to the petitioners at a belated stage and the petitioners were not able to file the show-cause in time, it is desirable to stay the operation of the impugned order of the learned Court below passed on dtd.02.03.2021 in I.A. No.1 of 2021, arising out of C.S.No.161 of 2021 till disposal of the appeal. Hence, ordered....."
6. Mr. Panigrahy, learned counsel for the Petitioner vehemently argues that the sole ground on the basis of which the impugned order has been passed is contrary to the materials Page 2 of 5 // 3 // available on record and is not sustainable. Although the Review Committee has already taken a decision that the Opposite Party- Company is a 'willful defaulter', but in view of the impugned order it is not in a position to take action pursuant to the same. As a result, the Petitioner-Bank is highly prejudiced and is put to irreparable loss. He also contended that the impugned order under Annexure-1 is in the nature of temporary injunction and learned District Judge ought to have passed the impugned order in favour of the Opposite Party-Company, after recording a finding about satisfaction of the ingredients to grant a temporary injunction. It is further contended that in addition to the ingredients for grant of an order of injunction, the person seeking injunction must satisfy the Court that he has approached the Court at the earliest and has not wasted any time in view of the ratio decided in the case of Morgan Stanley Mutual Fund v. Kartick Das, reported in AIR 1994 SCW 2801.He, therefore, submits that the impugned order is liable to be set aside and the appeal be directed to be disposed of early on its own merit.
7. Mr. Mishra, learned Senior Counsel, on the other hand, submits that if the impugned order is vacated/set aside the appeal in FAO No.22 of 2021 will be infructuous, as nothing will remain to be decided in the appeal itself. Once the decision taken by the Review Committee is published in the website of the Reserve Bank of India consequent penal action will be taken against the Opposite Party-Company. As a result, it will suffer irreparable loss as the Opposite Party-Company will be put in an irretrievable position. He also made a submission on merits of Page 3 of 5 // 4 // the case of the Opposite Party-Company before the learned District Judge. It is his submission that the money borrowed by the Opposite Party-Company is fully secured and the Petitioner- Bank will not be at loss if the impugned order is allowed to continue till disposal of the appeal. He also submits that interest of justice will be best served, if the appeal in FAO No.22 of 2021 pending before learned District Judge, Khordha at Bhubaneswar is disposed of at the earliest. The Opposite Party- Company is ready and willing to co-operate with the learned District Judge for the same. The order is meant to protect the interest of the parties till disposal of the appeal and keep the lis (the appeal) alive till it reaches its logical end. In the meantime, five months have already passed from the date of passing of the impugned interim order. As such, interest of the justice will be best served if the appeal is disposed of at the earliest.
8. Taking into consideration the submissions made by learned counsel for the parties, this Court finds that any finding on the merits of the case may prejudice either of the parties, more particularly when the appeal is pending before learned District Judge for adjudication. It further appears that once the impugned interim order is vacated, the Petitioner-Bank will be in a position to publish the decision of the Review Committee in the website of the Reserve Bank of India and in that event, the appeal will be otiose and there will be nothing left to be decided in the appeal itself.
9. In view of the above, this Court without delving into merits of the case of either party and without expressing any opinion on the same and in order to keep the lis, i.e., FAO Page 4 of 5 // 5 // No.22 of 2021 alive till its logical conclusion, observes that the appeal in FAO No. 22 of 2021 shall be disposed of in accordance with law within a period of one month from today. Parties are directed to cooperate with the learned District Judge, Khordha at Bhubaneswar for early disposal of the appeal.
13. With the aforesaid observation, this Court without interfering with the impugned order under Annexure-1, disposes of the CMP.
Issue urgent certified copy of the order on proper application.
(K.R.Mohapatra) Judge S.S.Satpathy/Prasant Page 5 of 5