Calcutta High Court (Appellete Side)
Arabinda Giri vs Shriram Transport Company Ltd on 17 November, 2011
Author: Prasenjit Mandal
Bench: Prasenjit Mandal
1 Form No.J(2) IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION APPELLATE SIDE C.O. No. 2857 of 2011 Present :
The Hon'ble Mr. Justice Prasenjit Mandal
Arabinda Giri.
Versus
Shriram Transport Company Ltd.
For the petitioner: Mr. Aniruddha Chatterjee, Mr. Tapan Kr. Mukhopadhyay.
For the opposite party: Mr. Ranabir Roychowdhury. Heard On: 14.11.2011.
Judgement On: November 17, 2011.
Prasenjit Mandal, J.: This application is at the instance of the plaintiff and is directed against the order dated July 18, 2011 passed by the learned Judge, City Civil Court, 7th Bench, Calcutta in Title Suit No.5041 of 2008 thereby rejecting an application under Section 151 of the C.P.C. filed by the plaintiff.
The plaintiff / petitioner herein instituted a suit for declaration, permanent injunction and other reliefs. The petitioner has contended that he is the owner of the vehicle in question and he took financial assistance from the defendant for 2 the vehicle in question and he signed certain documents accordingly. He paid a sum of Rs.6,95,314/- to the defendants against his dues. He also expended money for maintaining the vehicle in question in running condition. He apprehended that the defendant might take possession of the vehicle in question at any time and as such, he filed the said suit for the reliefs already stated.
The defendants are contesting the said suit denying the material allegations raised in the plaint and they have contended that there is an arbitration clause in the agreement of hire purchase in respect of the vehicle in question and an award was passed against the petitioner by the learned Arbitrator. So, the suit is not maintainable and they have filed an application under Sections 5 & 8 of the Arbitration and Conciliation Act.
The matter in dispute between the parties came up for hearing before this Hon'ble Court on a number of occasions and ultimately, this Bench directed the learned Trial Judge to dispose of the application under Section 151 of the C.P.C. filed by the petitioner within 7 days from the date of receipt of the order and such application should be disposed of prior to the disposal of the application under Sections 5 & 8 of the Arbitration and Conciliation Act of 1996. Accordingly, the learned Trial Judge rejected the said application by the impugned order. Being aggrieved, this application has been preferred. 3
Now, the question is whether the impugned order should be sustained.
Upon hearing the learned counsel for the parties and on going through the materials on record, I am surprised to see that the learned Trial Judge has disposed of the said application under Section 151 of the C.P.C. by recording reasons by simply one sentence that he is not inclined to accept the reasons submitted by the lawyer for the petitioner to the effect that the opposite party had violated the order of the court.
It may be noted herein that at the time of filing of the suit, the plaintiff / petitioner herein filed an application for temporary injunction and he also prayed for ad interim injunction. The order of ad interim injunction was granted on November 27, 2008 to the effect that the opposite parties had been restrained by an ad interim order of injunction from seizing and / or taking possession of the vehicle in question and such interim order of injunction had been extended from time to time and it continued till July 1, 2010 when the application for temporary injunction would be heard along with the petition under Sections 5 & 8 of the Arbitration and Conciliation Act (vide Order No.10 dated February 25, 2011 appearing as Annexure P-4 at Page 37). What is surprising is that in spite of such order, the learned Trial Judge has recorded the one sentence that he is not inclined to accept 4 the reasons submitted by the learned lawyer for the petitioner that the opposite party had violated the order of the court.
From the papers filed by the petitioner, it does not appear that the opposite party has filed any written objection against the said application. So, if no objection is filed, the contention of the petitioner remains uncontroverted.
The learned Advocate for the opposite party has submitted that the petitioner did not file any contempt application for violation of the order of injunction and as such, the application under Section 151 of the C.P.C. has been rightly rejected. This contention of Mr. Ranabir Roychowdhury, learned Advocate for the opposite party, I hold, cannot be accepted. It is up to the petitioner as to what step he would take with regard to the vehicle in question for violation of the order of injunction. Anyway, he has prayed for positive relief for getting back the vehicle alleging that the vehicle had been seized by the opposite party violating the ad interim order of injunction. The Court is to consider whether such relief could be granted to him or not. The plaintiff can well pray for restoration of possession of any property which is seized in violation of the order of the Court of competent jurisdiction. Mr. Chatterjee has contended that if his client files a contempt application, the opposite parties might be punished for violation of the order of the court. But, his client might not get the possession of the vehicle in the contempt 5 proceeding and for this reason his client has filed the application for getting back the possession of the vehicle. This submission, I hold, is convincing.
Under the circumstances, for the reasons recorded above, prima facie, it appears that there are materials to show that the defendants / opposite parties herein have violated the order of the Court. So, the findings of the learned Trial Judge cannot be supported. Since, the original record is not here and it is not certain if any written objection was filed by the opposite parties, I am of the view that the impugned order should be set aside and the learned Trial Judge shall be directed to hear out the application under Section 151 of the C.P.C. afresh within a period of 30 days from the date of communication of this order to him. If no written objection was filed against the application under Section 151 of the C.P.C., the opposite parties are at liberty to file a written objection against the said application within a period of two weeks from date.
The impugned order cannot, therefore, be supported. The revisional application succeeds. It is, therefore, allowed. The impugned order is hereby set aside. The learned Trial Judge is directed to dispose of the said application under Section 151 of the C.P.C. in the manner indicated above and such date is firm and mandatory.
6
In order to avoid future complications, the interim order passed by this Bench to the effect that the opposite parties are restrained from disposing of the vehicle in any manner shall continue for a period of 30 days from date. The petitioner is also given liberty to pray for extension of the such order before the learned Trial Judge, if the situation demands.
Considering the circumstances, there will be no order as to costs.
Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.
(Prasenjit Mandal, J.)