IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13-04-2010 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN C.R.P.(PD) No.165 of 2010 and M.P.Nos.1 and 2 of 2010 M/s.Klen & Marshalls Manufacturers & Exporters Limited, Rep. By its Authorised Representative M.K.Naveen Menon, No.496, Ninth Cross, Third Main Road, R.M.V.Extension, Bangalore-560 080. .. Petitioner. Versus 1.Shreem Capacitors Private Ltd., Rep. By Mr.A.D.Haldankar Plot No.43/46, Industrial Estate, Kolhapur District. 2.M/s.Marshalls Power and Communication India Limited, Eskay Buildings, First Floor, No.144, Greams Road, Chennai. 3.State Bank of India, Industrial Finance Branch, Tara Chambers, Wakdewadi, Pune-411 003. .. Respondents. PRAYER: Petition filed under Article 227 of the Constitution of India, seeking to set aside the order and decretal order, dated 30.4.2009, made in I.A.No.6617 of 2009, in I.A.No.20508 of 2007, in O.S.No.7979 of 2007, on the file of the XIV Assistant Judge, City Civil Court, Chennai. For Petitioner : Mr.V.Ayyadurai For Respondents: Mr.R.Yashod Vardhan, Senior Counsel for M/s.Span Associates O R D E R
This Civil Revision Petition has been filed against the order, dated 30.4.2009, made in I.A.No.6617 of 2009, in I.A.No.20508 of 2007, in O.S.No.7979 of 2007, on the file of the XIV Assistant Judge, City Civil Court, Chennai.
2. The petitioner herein is the second defendant in the suit, in O.S.No.7979 of 2007, on the file of the XIV Assistant Judge, City Civil Court, Chennai. The first respondent is the plaintiff in the suit. The suit had been filed praying for a decree of permanent injunction restraining the third defendant therein from accepting the demand of the first and the second defendants and allowing the encashment of the bank guarantee No.07/252, dated 22.3.2007, for the sum of Rs.2,40,000/- and the bank guarantee No.07/253, dated 22.3.2007, for the sum of Rs.23,85,000/- and for the costs of the suit and for other reliefs.
3. The first respondent had filed an interlocutory application, in I.A.No.20508 of 2007, praying for an order of exparte ad-interim injunction restraining the State Bank of India, Industrial Finance Branch, Pune, the third respondent in the application from accepting the demand of the first and the second respondents therein and from allowing the encashment of the bank guarantee No.07/252, dated 22.3.2007, for the sum of RS.2,40,000/- and the bank guarantee No.07/253, dated 22.3.2007, for the sum of Rs.23,85,000/-, pending disposal of the suit.
4. By an order, dated 19.12.2007, the trial Court had granted an order of ad-interim injunction, till 3.1.2008. Thereafter, the interim order had been extended on various dates. On 26.3.2009, the trial Court had ordered as follows:
Suit is in part heard stage. Petition is closed.
5. In the meanwhile, the petitioner had filed an interlocutory application, in I.A.No.6324 of 2008, to vacate the order of ad-interim injunction granted in favour of the first respondent herein. By an order, dated 26.3.2009, the trial Court had passed the following order:
No interim order is in force as on date. Hence, petition is closed as unnecessary.
6. Thereafter, the first respondent had filed an interlocutory application, in I.A.No.6617 of 2009, in I.A.No.20508 of 2007, praying that the trial Court may be pleased to review its order, dated 26.3.2009, made in I.A.No.20508 of 2007. Even though a counter affidavit had been filed on behalf of the respondents therein stating that the application for review is not maintainable, the trial Court had, by its order, dated 30.4.2009, allowed the said application, directing the parties to maintain `status quo’, till the disposal of the suit, in O.S.No.7979 of 2007. The present Civil Revision Petition has been filed challenging the said order of the trial Court, dated 30.4.2009.
7. The learned counsel appearing on behalf of the petitioner had raised various grounds to show that the application filed by the first respondent, in I.A.No.6617 of 2009, to review the order, dated 26.3.2009, made in I.A.No.20508 of 2007, is not maintainable, either in law or on the facts of the case. He had stated that the first respondent ought to have preferred an appeal against the order of the trial Court, dated 26.3.2009, made in I.A.No.20508 of 2007, under Order XLIII Rule 1 of the Civil Procedure Code, 1908. The learned counsel had further stated that the trial Court has no power or jurisdiction to pass the impugned order, either by invoking the principle of equity or by invoking its inherent power, under Section 151 of the Civil Procedure Code, 1908.
8. The trial Court, cannot invoke its inherent power when an express power is available, as provided under Order XLIII Rule 1 of the Civil Procedure Code, 1908. He had also stated that the order passed by the trial Court, on 30.4.2009, in I.A.No.6617 of 2009, had given rise to a conflicting opinion affecting the rights of the parties to the suit. The learned counsel had also submitted that the only remedy available to the petitioner is to file a civil revision petition, before this Court, under Article 227 of the Constitution of India.
9. Per contra, the learned counsel appearing on behalf of the first respondent had submitted that the trial Court had passed the impugned order, dated 30.4.2009, in I.A.No.6617 of 2009, on the principle of equity, directing the parties to the suit to maintain `status quo’, till the disposal of the suit, in O.S.No.7979 of 2007. The trial Court had passed the said order after realizing that the interlocutory application, in I.A.No.20508 of 2007, had been closed, on 26.3.2009, mistakenly. He had also submitted that it is not open to the petitioner to file a civil revision petition before this Court, challenging the impugned order of the trial Court, dated 30.4.2009, made in I.A.No.6617 of 2009, invoking Article 227 of the Constitution of India. The appropriate remedy that would be available to the petitioner is to file an appeal, under Order XLIII Rule 1 of the Civil Procedure Code, 1908, challenging the order of the trial Court, dated 30.4.2009, made under Rule 4 of Order XLVII of the Civil Procedure Code, 1908.
10. The learned counsel had also stated that the suit, in O.S.No.7979 of 2007, is at the final stage of trial. He had also stated that the plaintiffs witness had already been examined and in such circumstances, it would be appropriate for this Court to close the civil revision petition filed by the petitioner and to direct the trial Court to dispose of the suit, within a specified period, while continuing the order of `status quo’, which is in existence, as on date.
11. In view of the submissions made by the learned counsels appearing on behalf of the parties concerned and on a perusal of the records available and in view of the fact that the trial in the suit, in O.S.No.7979 of 2007, had started, this Court is of the considered view that it would be appropriate to direct the trial Court to dispose of he suit, within a specified period, as prayed for by the learned counsel for the first respondent. Therefore, the learned XIV Assistant Judge, City Civil Court, Chennai, is directed to hear and dispose of the suit, in O.S.No.7979 of 2007, on merits and in accordance with law, as expeditiously as possible, not later than three months from the date of receipt of a copy of this order.
Accordingly, the civil revision petition stands closed, with the above directions. No costs. Consequently, connected miscellaneous petitions are closed.
Index:Yes/No 13-04-2010
Internet:Yes/No
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To
The XIV Assistant Judge,
City Civil Court, Chennai.
M.JAICHANDREN J.
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C.R.P.(PD) No.165 of 2010
13-04-2010