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Calcutta High Court
Sbi Home Finance Ltd. vs Sri Prabir Chatterjee on 29 September, 2000
Equivalent citations: (2001) 1 CALLT 166 HC, 2001 (1) CHN 48
Author: A K Banerjee
Bench: V K Gupta, A K Banerjee


A.K. Banerjee, J.

1. The appeal is admitted. This case emanated from an order passed by the learned Seventh Civil Judge (Senior Division), Alipore wherein the learned Judge passed an interim order of injunction overlooking the basic provisions of law as also the well-settled principles settled by the apex Court in granting ad interim order of injunction.

2. The facts of this case are briefly stated hereinafter.

3. The respondents availed credit facilities from the appellent in respect of a civil construction project, namely ‘Diamond Tower’. The case of the respondent before the Alipore Court was that an agreement was entered into by and between the parties with regard to repayment of the loan amount. Despite such agreement being entered into by and between the parties, the appellant herein made a demand through its advocates and threatened legal proceedings in case of default.

4. Simultaneously, with the filing of the suit, the respondent made an application before the learned Judge under Order 39 Rules 1 & 2 of the Code of Civil Procedure and obtained an ex parte ad interim order of injunction restraining the appellant from initiating any proceedings in terms of the said letter of demand.

Mr. Basu appearing for the appellant attacked the impugned order on two counts :

I. The order is hit by the provisions of section 41(b) of the Specific Relief Act, 1963.

II. Reasons, if any, recorded in the said order are not adequate in passing an ad interim order of injunction and that too ex parte.

5. In support of his first contention, Mr. Basu has cited (Cotton Corporation of India v. United industrial Bank).

6. In support of his second contention Mr. Basu cited the case of Shib Kr. Chadda .

7. Mr. Pradip Ghosh appearing for the respondent contended that the alleged agreement in question was entered into by and between the parties and without cancellation of the said agreement the appellant herein is not entitled to issue any notice of demand or initiated any proceedings.

8. Mr. Ghosh also contended that the impugned order has been passed by the learned Judge after recording reasons. According to Mr. Ghosh the reasons given in the impugned order are adequate in passing an ex parte ad interim order of injunction.

9. Mr. Ghosh lastly contended that the appellant without availing the provisions of Order 39 Rule 4 is not entitled to assail the said order before us.

10. In support of his contention Mr. Ghosh cited two decisions reported in AIR 1976 Madras 350 and . Mr. Ghosh also cited Supreme Court decision .

11. Section 41(b) of the Specific Relief Act clearly bars any injunction to be passed restraining a party from initiating any proceedings. The Hon’ble Supreme Court in the Case of Cotton Corporation (supra), inter alia, held that the Court has no jurisdiction to grant an order of injunction restraining a person from initiating a proceeding in the Court not subordinate to it, as a relief, ipso facto temporary relief cannot be granted in the same terms. The Hon’ble Supreme Court also held that in appropriate cases Court can grant temporary injunction in exercise of its inherent power in cases not covered, under Order 39 of the CPC. But while exercising its inherent power the Court should not overlook the statutory provision which clearly indicates that injunction to restrain initiation of proceedings cannot be granted. The Hon’ble Supreme Court also observed that it must be remembered that inherent power of the Court cannot be invoked to nullify and/or stultify a statutory provision. Although Mr. Basu appearing for the appellant has argued that the alleged agreement was not acted upon even if we accept the contention of Mr. Ghosh to the extent that the said agreement was a valid one and the notice of demand is bad, the suit is not maintainable. In case the appellant opts for initiating a proceeding on the basis of a notice alleged to be had, it may do so at its own risk and peril and Mr. Ghosh’s client will get ample opportunity to contest such proceedings. The logic behind section 41(b) of the Specific Relief Act, in our opinion, is that no one should be stopped to come to Court of law for ventilating his grievance. The respondent in such cases would be given adequate opportunity to contest the same.

12. In view of the above, we have no hesitation to hold that the impugned order is patently illegal and vitiated by the provisions of statute as well as the principles laid down by the apex Court.

13. Since we find that the order impugned is patently illegal, it may not be necessary to go into the other question involved herein as stated herein above. But we are constrained to deal with other aspect, as we think we cannot be a mere on-looker without commenting on the mode by which the impugned order was passed by the learned Judge.

14. It is necessary to quote the so-called respons given by the learned Judge while passing the ex parte ad interim order:

“…..accordingly there is a prima facie case for the plaintiff and considering the balance of convenience and Inconvenience and Irreparable loss and injury as well as viewing the urgency in the matter which would be defeated by refusal of ad interim order, the same is granted in the following way.”

15. It is unfortunate that the learned Judge not even cared to reproduce even mechanically the language of Order 39 specially Rule 3 which is reproduced below :

“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 appellicant.

(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.”

16. As we have observed earlier, that even if we hold that the agreement is a valid one, even then such application was hit by the provisions of section 41(b) of the Specific Relief Act. Learned Judge unfortunately overlooked the said provision. Coming to the question recording so-called reasons, we find no reasons recorded in the said order far to speak of “adequate”. The language of the order as reproduced earlier cannot be said to be “reasons” recorded while passing an ad interim order of injunction in terms of the guidelines stipulated by the apex Court in the case of Morgan Stanley . Such guidelines are set out hereunder :

“As a principles, ex parts injunction could be granted only under exceptional circumstances. The factors which should weigh with the Court in the grant of ex parte injunction are–

(a) whether irreparable or serious meschief will ensue to the plaintiff;

(b) whether the refusal of ex parte injunction would involve greater injustice than the grant of it would involve;

(c) the Court will also consider the time at which the plaintiff first had notice of the act complained so that the making of improper order against a parry in his absence is prevented;

(d) the Court will consider whether the plaintiff had acquiesced for some time and in such circumstances it will not grant ex parte injunction ;

(e) the Court would expect a party applying for ex parte injunction to show utmost good faith in making the application;

(f) even if granted, the ex parte injunction would be for a limited period of time;

(g) general principles like prima facie case, balance of convenience and irreparable loss would also be considered by the Court.”

17. We are constrained to say that none of these guidelines have been followed by the learned Judge, in passing the impugned order.

18. Let us now deal with the cases cited by Mr. Ghosh.

19. The Division Bench of the Karnataka High Court in the said judgment, inter alia, observed as follows :

“For the foregoing reasons, we hold that Order 43 rule 1 of the Code does not allow the filling of an appeal from an ex parte interim order of temporary injunction granted under rule 1 or 2 of Order 39, but the remedy of the aggrieved person is to move the trial Court under rule 4 of Order 39 of the Code in the first instance. We further hold that even a stranger to the suit or proceeding can maintain such an application. We hereby overrule the decisions of single Judge’s taking a view in favour of the permissibility of an appeal against an interim ex parte order of temporary injunction, to wit, keshavachand Gopalchand v. Ningappa Kolakar 1969(2) Mys. LJ 525…..”

20. The Madras High Court in the said judgment (AIR 1976 Madras 350) observed, inter alia, as follows :

“No appeal will lie against an ex parte ad interim injunction but the specific remedy available in Order 39 rule 4 of the CPC has to be availed of by the interdicted party so that a final reasoned order would be obtained in the trial Court itself against which Court is provided an obvious appeal under Order 43 rule 1 (r) of CPC”

21. We are in total disagreement with the aforesaid two judgments as we find that Order 43 rule 1 (r) has never restricted the question of maintainability of an appeal in respect of an ad interim order of injunction. We feel that Order 39 rule 4 has given right to a respondent to pray for vacating of the ad interim order of injunction but that has not taken away the right of a respondent to prefer any appeal from the order passed under Order 39 rule 1 & 2 without availing the mode prescribed under rule 4. Hence, the two Division Bench decisions of the Hon’ble Madras High Court and the Hon’ble Karnataka High Court cannot be the abstract proposition of law in this regard in absence of any ouster of jurisdiction prescribed by Order 43.

22. The case cited by Mr. Ghosh does not in any way help Mr. Ghosh. The relevant paragraphs of the said decision is reproduced below :

“It may be pointed out that it is one thing to conclude that the trial Court has not recorded its prima facie satisfaction on merits but granted the temporary injunction and it is another thing to hold that the trial Court has gone wrong in recording the prima facie satisfaction and setting aside that finding on the basis of the material on record because it has not considered the relevant material or because it has erroneously reached the finding or conclusions on the facts established. In the first situation, the appellate Court will be justified in upsetting the order under appeal even without going into the merits of the case but in the second eventuality, it cannot set aside the impugned order without discussing the material on record and recording a contrary finding. The High Court proceeded to set aside the order of the trial Court on the first ground ignoring the aforementioned findings of the trial Court. The order under appeal is, therefore, unsustainable,”

23. As we have observed earlier, the order impugned is not only perverse and illegal but also have been made ex parte without any reasons and the so-called reasons recorded in the order impugned cannot be said to be “reasons” within the meaning of the guidelines stipulated by the Hon’ble Supreme Court in the case of Morgan Stanley (supra). Moreover, the appreciation of the fact and law by the learned Judge in the impugned order, according to us, is erroneous, as we have held hereinbefore. Hence, the apex Court decision cited by Mr. Ghosh does not support his contention.

24. When a litigant approaches the Court of Law, it is the duty of the Judicial Officer to examine the maintainability of the same in the light of the prevailing laws of the land. If the basic concept of law is overlooked, the situation would be disastrous. According to the Hon’ble Mr. Justice Krishna Iyer (AIR 1977 SC 2421) such litigation should be nipped in the bud. In the instant case, the learned Judge instead of dismissing the said litigation has inspired the litigant by granting ex parte ad interim order of injunction. In those cases, as we have said, we cannot be a mere on-looker. We should trigger off such attempt.

25. Accordingly, the impugned order dated 30th August, 2000 passed in Title Suit No. 249 of 2000 (Prabir Chatterjee v. SBI Home Finance Ltd.) is set aside. The appeal is thus disposed of. The respondent is directed to pay the cost of the appellant assessed at Rs. 3,000/-.

V.K. Gupta, J.

26. I have had the privilege of going through the detailed, lucid and elaborate judgment of my learned brother Ashim Kumar Banerjee, J. with which I fully concur and agree. However, since the question relating to the maintainability of the appeal against an order granting a temporary injunction under Order 39 Rules 1 and 2 read with section 151 of the Code of Civil Procedure was urged by the learned Advocate for the respondents and a very heavy reliance was placed on two reported Judgments of Karnataka and Madras High Courts which have also been discussed in details by my learned brother in his Judgment, I feel that I should add a few more lines to supplement the legal proposition as propounded by my learned brother.

27. Undoubtedly, the object of Rule 4 of the Order 39 of the Code of Civil Procedure is to encourage a party in a suit to approach the trial Court by filing an appropriate application for vacating the injunction Order earlier granted in that Suit by the trial Court and in normal circumstances, the party without availing of that remedy directly filing an appeal against the order of granting of a temporary injunction should be discouraged from doing so. The view expressed by the Karnataka and Madras High Courts however in the above referred two judgments that appeal in all such cases where the appellant has not exhausted the remedy of approaching the trial Court under Order 39 Rule 4 is barred, cannot be accepted by us as a good law. As an abstract proposition of law, that no litigant is permitted to come us in an appeal against an order of granting of an injunction passed in terms of Order 39 Rules 1 and 2 or section 151 of the Code of Civil Procedure, cannot be accepted by us, since clearly Order 43 Rule 1 CPC does confer upon such an appellant the right of filing such an appeal against such an order. The right conferred upon an aggrieved party of filing an appeal cannot be taken away mainly because he has not availed of the remedy as provided under Order 39 Rule 4. However, we ourselves are of the clear opinion that in normal circumstances, filing of such an appeal should be discouraged and a person who feels himself aggrieved should be normally asked to go and approach the trial Court by filing an application under Order 39 Rule 4, But, in a situation and in cases where the order passed under Order 39 Rules 1 and 2 is palpably wrong, patently erroneous both on facts and in law, and is totally without jurisdiction or where no useful purpose shall be served by sending the appellant to the trial Court under Order 39 Rule 4, the insistence that the aggrieved party approaches to the trial Court under Order 39 Rule 4 should be avoided and the appeal by such a party against such an order should be held to be maintainable.

28. Appeal allowed

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