HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA AND HONOURABLE SRI JUSTICE M.SATYANARAYANA MURTHY O.S.A. Nos. 22 and 23 of 2014 .
DATED 11th JUNE, 2014.
BETWEEN Cyprus Investments Pvt. Limited A company registered under the provisions of the Company Act, Mumbai and anr.
2014 Mr. R.K. Baxi ……Appellants in OSA.No.22 of 2014.
And Dr.P.S.Prasad and ors ….Appellants in OSA.No.23 of ….Respondents in both OSAs.
HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA AND HONOURABLE SRI JUSTICE M.SATYANARAYANA MURTHY O.S.A. Nos. 22 and 23 of 2014 .
COMMON JUDGMENT: ( per AM.J.) These two appeals can be disposed of by this common judgment.
These two Appeals are preferred, separately, by the Cyrus Investments Private Limited and its authorized signatory Mr. Richard Arun Sequeira and Mr. R.K. Baxi, who are respondents 1 and 5 and 6, aggrieved by the order dated 07.04.2014, passed by a learned single Judge of this Court in Application No.356 of 2014 in Civil Suit No.14 of 1958.
The first respondent herein filed an application being Application No.356 of 2014 in Civil Suit No.14 of 1958, under Order 39 Rule 1 and 2 read with Section 151 of C.P.C. seeking the following reliefs :
1) To restrain the respondents from interfering or obstructing in any manner in his exclusive right to act for and on behalf of the 1st respondent company including prosecuting the pending matters in respect of the suit schedule property in Civil Suit No.14 of 1958 ;
2) To restrain the respondents from executing or registering any document having affect of cancellation of General Power of Attorney document bearing document No.521/04, dated 02.04.2004 and document No.86/05, dated 07.01.2005 registered in the office of the Sub- Registrar, Mumbai ;
3) To restrain the respondents from disturbing or changing the Attorneys who were appointed/engaged by the applicant to represent the 1st respondent or substituting the existing attorneys ; and
4) To declare that the General Power of Attorney bearing document No.521/04, dated 02.04.2004 and document No.86/05, dated 07.01.2005 registered in the office of the Sub-Registrar, Mumbai are not capable of being cancelled or rescinded and any act of the respondents having the affect of cancellation of the said documents as illegal, null and void.
A learned single Judge of this Court, after hearing the arguments of learned counsel for the first respondent, passed the following order :
“Heard learned counsel for the petitioner.
It is submitted that there is no express provision in both GPAs executed by the first respondent for termination as per the provisions of Section 202 of the Contract Act, when the GPAs are executed after receiving entire consideration amount.
In that view of the matter issue ad-interim injunction as prayed for.
Notice to the respondents. Post after service of notice.”
The impugned order dated 07.04.2014 is challenged raising the following similar grounds in both the Appeals :
a) Learned single Judge of this Court did not record any reasons for granting ad-interim injunction in conformity with Order 39 Rule 3 of C.P.C. and that the learned single Judge did not record his satisfaction about the establishment of requirements for grant of ad-interim injunction in favour of the applicant ;
b) The dispute set out in the Application is between the principal and agent i.e., cancellation of G.P.A and it is outside the scope of Civil Suit No.14 of 1958; thereby, the Application itself is not maintainable before this Court and thereby the impugned order passed by learned single Judge is erroneous on the face of the record, and finally prayed to allow the Appeals setting aside the impugned order passed by learned single Judge of this Court.
Sri K. Ramakrishna Reddy, learned Senior Counsel, appearing for the appellants in O.S.A. No.22 of 2014, mainly contended that the impugned order under challenge is void as the learned single Judge did not record any reason to dispense with notice prior to grant of interim injunction as contemplated under Order 39 Rule 3 CPC, and therefore on this ground alone the impugned order is liable to be set-aside.
Whereas, Sri D. Prakash Reddy, learned Senior Counsel, appearing for the appellant in O.S.A. No.23 of 2014 besides raising contentions about non compliance of Order 39 Rule 3, contended that the scope of the dispute is outside the purview of Civil Suit No.14 of 1958 and thereby the learned Single Judge has no original jurisdiction to try the dispute; on this ground also the impugned order is liable to be set-aside and prayed to allow the Appeals setting-aside the impugned order passed by learned single Judge of this Court.
Per contra, Sri Vedula Venkataramana, learned Senior Counsel appearing for the first respondent supported the impugned order contending that the learned single Judge has recorded the considerable and substantial reason for passing the impugned order and therefore the impugned order is not vitiated by law. He further contended that having regard to the
facts that emerged from the record, the learned single Judge while referring the provisions of Section 202 of the Indian Contract Act granted interim order which does not call for any interference by this Court. Referring to the contentions raised by the learned Counsel for the appellants, on the other hand, Sri Vedula Venkata Ramana contended that merely because learned single Judge did not record reasons, the parties should not made to suffer for the mistake of the Court and therefore the contentions advanced by the learned Counsel for the appellants are unknown to law and the same cannot be countenanced. He added that when the contentions advanced/extracted in the order amounts to compliance of Order 39 Rule 3 CPC, though the order does not specifically disclose the reasons for dispensing notice prior to granting interim injunction, the impugned order passed by learned single Judge of this Court, in all respects, is sustainable in the ye of law and thereby he finally prayed to dismiss the Appeals confirming the impugned order.
On considering rival contentions, perusing the impugned order and material available on record, the sole point that arises for consideration in these appeals is, whether the impugned order dated 07.04.2014 passed by learned single Judge of this Court in Application No.356 of 2014 in Civil Suit No.14 of 1958 is legal and strictly passed adhering to Order 39 Rule 3 of C.P.C.?
Before entering into the merits or otherwise of the contentions advanced by the learned Senior Counsel appearing on either side, it is apposite to have a glance at the provision under Order 39, Rule 3 of C.P.C, which reads as under:
“3. 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 or granting the injunction would be defeated by delay, and require the applicant –
(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.”
A bare look at Order 39 Rule 3 CPC mandates that it is obligatory on the part of Court to record reasons for dispensing with urgent notice before granting ad-interim injunction. As such whenever a Court considers it necessary in the facts and circumstances of a particular case to pass an order of injunction without notice to other side, it must record the reasons for doing so and should take into consideration while passing an order of injunction, all relevant facts including as to how the object of granting injunction itself shall be defeated if an ex parte order is not passed.
The learned counsel for the appellants primarily opposed the impugned order only on the ground that the learned single Judge did not record any reasons as required under proviso to Order 39 Rule 3 and placed reliance on a judgment of the Apex Court in A. Venkata Subbaiah Naidu Vs. S. Chellappan and
[1]
others
, wherein the Apex Court held as follows at Para 15 :
“15. What would be the position if a Court which passed the order granting interim ex-parte injunction did not record reasons thereof or did not require the applicant to perform the duties enumerated in Clauses (a) & (b) of Rule 3 of Order 39. In our view such an Order can be deemed to contain such requirements at least by implication even if they are not stated in so many words.”
Taking advantage of the principle laid down in the above judgment, it is contended that as per the principle laid down by the Apex Court, the order under challenge is vitiated due to non-observance of the mandatory requirement under proviso to Order 39 Rule 3 of C.P.C. Indeed the language used in the Rule itself says that it is mandatory to order notice before granting injunction and if there is urgency to grant such an order, the Court may dispense with notice recording reasons that the delay would defeat the very purpose of granting injunction. Thus, it is contended by the learned Counsel for the appellants that inasmuch as the order under challenge suffers from illegality i.e., non-observance of mandatory procedure under Order 39 Rule 3 of C.P.C.,on this ground alone, the order is vitiated by irregularity and liable to be set-aside.
The learned counsel further placed reliance on a decision of the Apex Court in Dilboo (Smt) (Dead) by L.Rs. and others
[2]
Vs. Dhanraji (smt) (Dead) and others
, wherein the Apex Court held as follows :
“Power to grant injunction is an extraordinary power vested in the Court to be exercised taking into consideration the facts and circumstances of a particular case. The Courts have to be more cautious when the said power is being exercised without notice or hearing the party who is to be affected by the order so passed. Such ex parte orders have far-reaching effect and as such a condition has been imposed under proviso to R.3 of Or.39 CPC that Court must record reasons before passing such order. This is imperative in nature and not optional. When the statue itself requires reasons to be recorded, the Court cannot ignore that requirement by saying that if reasons are recorded it may amount to expressing an opinion in favour of the plaintiff before hearing the defendant. Proviso to R.3 attracts the principle that if a statue requires a thing to be done in a particular manner it should be done in that manner or not all. The requirement for recording the reasons for grant of ex parte injunction cannot be held to be a mere formality. This requirement is consistent with the principle that a party to a suit who is being restrained from exercising a right which such party claims to exercise either under a statue or under the common law must be informed why instead of following the requirement of R.3, the procedure prescribed under the proviso has been followed. The party who invokes the jurisdiction of the Court fro grant of an order of restrain against a party, without affording an opportunity to him of being heard, must satisfy the Court about the gravity of the situation and Court has to consider briefly these factors in the ex parte order.”
The learned counsel further placed reliance on a judgment of the Apex Court in Shiv Kumar Chadha Vs.
[3]
Municipal Corporation of Delhi and others
, wherein the Apex Court held as follows, at paragraphs 34 and 35 :
“34. The imperative nature of the proviso has to be judged in the context of Rule 3 of Order 39 the Code. Before the proviso aforesaid was introduced, Rule 3 said "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". The proviso was introduced to provide a condition, where Court proposes to grant an injunction without giving notice of the application to the opposite party, being of the opinion that the object of granting injunction itself shall be defeated by delay. The condition so introduced is that the Court "shall record the reasons" why an ex parte order of injunction was being passed in the facts and circumstances of a particular case. In this background, the requirement for recording the reasons for grant of ex parte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed why instead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party who invokes the jurisdiction of the Court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the Court about the gravity of the situation and Court has to consider briefly these factors in the ex parte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the Court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance thereof will not vitiate the order so passed. But same cannot be said in respect of the proviso to Rule 3 of Order 39. The Parliament has prescribed a particular procedure for passing of an order of injunction without notice to the other side, under exceptional circumstances. Such ex parte orders have far reaching effect, as such a condition has been imposed that Court must record reasons before passing such order. If it is held that the compliance of the proviso aforesaid is optional and not obligatory, then the introduction of the proviso by the Parliament shall be a futile exercise and part of Rule 3 will be a surplus age for all practical purpose. Proviso to Rule 3 of Order
39 of the Code, attracts the principle, that if a statute requires a thing to be done in a particular manner, it should be done in that manner or not all. This principle was approved and accepted in well- known cases of Toylor v. Taylor (1875) 1 Ch.D. 426, Nazir Ahmed v. Emperor MANU/PR/0020/1936 . this Court has also expressed the same view in respect of procedural requirement of the Bombay Tenancy and Agricultural Lands Act in the case of Ramchandra Keshav Adke v. Govind Joti Chavare MANU/SC/0511/1975 : [1975]3SCR839 .
35 . As such whenever a Court considers it necessary in the facts and circumstances of a particular case to pass an order of injunction without notice to other side, it must record the reasons for doing so and should take into consideration, while passing an order of injunction, all relevant factors, including as to how the object of granting injunction itself shall be defeated if an ex parte order is not passed. But any such ex parte order should be in force up to particular date before which the plaintiff should be required to serve the notice on the defendant concerned. In the Supreme Court Practice 1993, Vol.1, at page 514, reference has been made to the views of the English Courts saying:
Ex parte injunctions are for cases of real urgency where there has been a true impossibility of giving notice of motion....
An ex parte injunction should generally be until a certain day, usually the next motion day ”
We are conscious that there is no dispute regarding the principle laid down by the Apex Court in the judgments referred supra, from which, it is abundantly clear that a duty is cast upon the Court which grants ad-interim injunction to record its reasons for dispensing with prior notice, before granting ad interim injunction and it is mandatory, and if an order is passed granting ex parte ad interim injunction without complying Order 39 Rule 3 CPC, it is void and not legally sustainable under law.
The learned Senior Counsel for the appellants also placed reliance on the decisions of the Apex Court in Maria Margarida Sequeria Fernandes and Others Vs. Erasmo [4]
Jack de Sequeria (Dead) through L. Rs
, and in A.
Shanmugam Vs. Ariya Kshatriya Rajakula Vamsathu
[5]
Madalaya Nandhavana Paripalanai Sangam wherein also
the same principle is reiterated.
Now we proceed to examine the case on hand on the touchstone of the provision under Order 39 Rule 3 CPC and the principles laid down by the Apex Court in the decisions referred to supra.
In the case on hand, the appellant-M/s Cyrus Investments Pvt.Limited had appointed the first respondent herein as General Power of Attorney Holder under various deeds and documents from time to time and in regard thereto the first respondent paid consideration of Rs.20.00 lakhs which is equivalent to the value of the suit schedule properties and the same is acknowledged by the appellant in the registered document of 2005. However, through notice dated 19.3.2014 it was informed to the first respondent that the GPAs executed in his favour were cancelled.
Under these circumstances, a learned single Judge of this Court while making a reference to the provision under Section 202 of the Contract Act, granted interim relief.
It is to be seen that Section 202 of the Contract Act embodies that where the authority of an agent is given by deed or for valuable consideration for the purpose of effectuating any security or of protecting or securing any interest of agent, it is irrevocable during the subsistence of such security or interest. It means that if an agreement is entered into on a sufficient consideration, whereby an authority is given for the purpose of securing some benefit to the donee of the authority, such an authority is irrevocable. In the case on hand, the first appellant herein executed GPAs in favour of the first respondent having received consideration which is equivalent to the suit property to manage the suit properties. In view thereof, it is the contention of the first respondent that such GPAs are not capable for revocation and to prevent execution of such GPA in favour of third party, it is just and necessary to grant interim order and any delay in granting the interim order would make the first respondent to suffer irreparable loss.
So far as the grant of injunction is concerned, the entire merits of the main case need not be considered for the time being. In order to ascertain the grant of injunction, Court is required to see the basic cardinal principles, i.e., prima facie case, the balance of convenience and irreparable loss in granting the injunction and lastly, if the injunction is not granted whether the first respondent herein would suffer irreparable loss or not.
In the present case, if we refer the impugned order, it would appear that in the order for dispensing with issuance of notice under Rule 3 of Order 39 CPC, it cannot be said that the Court was not conscious of this provision. One may concede that to ask for specific and clear reference in the order of the learned single Judge to Rule 3 of Order 39 CPC, may sound unreal or academic. If, for any reason, there is no compliance to Order 39 Rule 3 CPC in the order, and absence of reference is not frowned upon, inasmuch as the facts of the case itself would suggest with regard to issuance of ad-interim injunction that delay caused in issuance of notice would defeat the purpose of issuance of injunction. In those circumstances, the respondent can hardly support the order on the plea that there is implied compliance to Rule 3 of Order 39 CPC.
Further it is to be seen in the present case that there is nothing on record to show that non-issuance of notice would have weakened the case of the appellants or would have caused prejudice to them. But, if the interim order is not granted there are chances for the appellants to execute GPAs in favour of third parties in respect of the suit properties, which would certainly cause irreparable loss. To issue notice is a rule and to issue injunction without issuance of notice is an exception which is to be resorted to in a case where the Court would find that the object of granting injunction would be defeated by delay.
Such is the situation in the case on hand. In the present case, it is merely possible to say that if the Court had issued show cause notice, then the other side would have so altered the position by that time that it would have defeated or frustrated the object.
With regard to the submission of the learned Counsel that non compliance of Order 39 Rule 3 CPC would be regarded as an error or beyond the jurisdiction of the Court, it is to be seen, for the sake of argument, but not otherwise, if compliance to Rule 3 Order 39 is not possible to infer from the impugned order, such error by itself would not vitiate the order. If the Court has not acted beyond or outside its jurisdiction, then in the circumstances of the case, this Court, at this stage, should not interfere with the order under challenge in this appeal.
As regards the submission of the learned Senior Counsel for the appellant that the scope of the dispute is outside the purview of the Civil Suit is concerned, we are not inclined to go into the same at this interlocutory stage since because the main application is pending adjudication and the same will be gone into at the final disposal of the application itself.
On overall consideration of the entire material available on record, we are of the considered view that the learned single Judge gave sufficient and adequate reason in passing the interim order and therefore we find that the order under challenge does not call for any interference in these appeals and consequently the appeals are liable to be dismissed.
In the result, OSAs are dismissed. However, the learned Single Judge is requested to decide the matter finally without being influenced by any of the observations made herein, as expeditiously as possible. As a sequel thereto, the miscellaneous petitions if any pending consideration shall stand closed. There shall be no order as to costs.
JUSTICE ASHUTOSH MOHUNTA
JUSTICE M. SATYANARAYANA MURTHY
DATED 11th JUNE, 2014.
Msnro
[1] (2000) 7 SCC 695
[2] (2000) 7 SCC 702
[3] (`1993) 3 SCC 161
[4] AIR 2012 SC 1727
[5] AIR 2012 SC 2010