Mr.AS Vakil, learned advocate for the appellant, seeks permission to delete respondent No.2. Permission is granted.
The instant Appeal from Order is preferred, challenging the impugned order dated 11.5.2011 passed by learned Sr.Civil Judge, Gandhidham, Kutch below application, Exh.9 in Special Civil Suit No.46 of 1998. The appellant is original defendant No.2 in said suit and the respondent No.1 is original plaintiff. Therefore, for the sake of convenience, the appellant and respondent No.1 shall be hereinafter referred to as the defendant and the plaintiff respectively.
The plaintiff filed the aforementioned suit to recover the sum of USD 1,64,190.11 from the defendants with running interest @ 18% p.a. from the date of filing of the suit till the realization. In the said suit, the plaintiff filed an application at Exh.9 for interim relief, restraining the defendants, their agents etc. to remove the said vessel - MT Tomis South, outside the limit of the port of Mumbai. In the said application, it was further prayed that if the defendants deposit before the trial Court, the sum of USD 1,64,190.11 being the plaintiff's claim in the suit, together with the interest claimed in the suit by way of security, then the defendants' vessel MT Tomis South be released from the injunction. It transpires that on 11.6.2009, the trial Court passed ex-parte order to the effect that the vessel has not to leave the limits of port of Bombay without the permission of the trial Court, and further directed that if the defendants furnish the security bond of the suit amount, the ad-interim injunction order qua the vessel shall cease to operate. It further transpires that, thereafter, the defendants appeared before the trial Court and contested the suit as well as the application, Exh.9. The trial Court, on 3.12.2007, disposed of the said application, Exh.9 by a cryptic order observing that the ad-interim order passed below application, Exh.9 was in consonance with the provisions contained in the Code of Civil Procedure regarding attachment before judgment and, therefore, nothing more was required to be done. It is pertinent to note that before said order dated 3.12.2007 came to be passed, the appellant - defendant had furnished a letter of undertaking dated 18.6.1999, Annexure-E. There is further no dispute that on the basis of such letter of undertaking, the vessel was permitted to leave the territorial limits of India. It transpires that the said order dated 3.12.2007, passed below application, Exh.9, came to be challenged by the appellant - original defendant No.2 herein in this Court in Special Civil Appln.No.6254 of 2008. This Court, vide order dated 17.9.2008, Annexure-H, allowed said petition and quashed and set-aside the impugned order dated 3.12.2007 passed below application, Exh.9 by the trial Court and the trial Court was directed to dispose of said application, Exh.9 on merits, in light of the observations made in said order.
It appears that, thereafter, the trial Court passed the impugned order dated 11.5.2011 below application, Exh.9 in said suit, whereby the application of the plaintiff was partly allowed.
Mr.AS Vakil, learned advocate for the appellant - original defendant No.2 vehemently challenged the impugned order passed by the trial Court and submitted that the trial Court even while passing the impugned order dated 11.5.2011 failed to take into consideration the specific directions issued by this Court in the order dated 17.9.2008 passed in Special Civil Appln.No.6254 of 2008. It is submitted that the trial Court in the impugned order did not touch the important contentions raised by the appellant - defendant No.2 and even did not take into consideration the basic requirement that whether there was reasonable chance of success of the plaintiff in the suit or not. My attention was drawn to the case of M/s.Rajasthan Cylinder & Container Ltd. & Anr. v.Essar Steel Ltd.
reported in AIR 2009 Gujarat 116 and submitted that the trial Court did not consider the important aspect of the matter as to whether the plaintiff had prima-facie case or not. It is, therefore, submitted that the appeal may be allowed and the impugned order may be set-aside.
None appeared for respondent No.1 - original plaintiff, though served.
As observed above, the application, Exh.9, filed by the plaintiff in the suit, initially came to be disposed of by a cryptic order passed by the trial Court dated 3.12.2007 only by observing that the requirements laid down regarding the provisions of attachment before judgment in the C.P.C., have been complied with and, therefore, nothing more was required to be done. Said order was challenged before this Court by preferring Special Civil Appln.No.6254 of 2008 by the appellant - original defendant No.2 herein. The said application came to be disposed of by this Court on 17.9.2008 by making relevant observations in paragraphs 7 to 12, which are as under:-
7. Having thus heard learned advocates appearing for the parties, I find that undisputably order dated 11.6.1999 was passed by the trial Court ex-parte. In the said order, the learned Judge put certain conditions only upon fulfilling which the defendants were permitted to move the ship. Undisputadely, such condition was fulfilled and ship was moved and to that extent the ex-parte order stood complied with. This, however, does not mean that the defendants cannot insist for bi-parte hearing on application Exh.9 after filing the reply. The condition imposed by the trial Court were ex-parte only upon hearing the plaintiff and the defendants had no opportunity to put forth their case. It may be that considering the urgency involved, the defendants chose to comply with the condition and moved the ship instead of opposing the ex-parte ad-interim order and seeking rejection of Exh.9 application at the outset. This, however, does not mean that the defendants cannot raise legal contentions before the trial Court and urge the trial Court to hear the application Exh.9 bi-parte and press for final order thereon in accordance with law. To this limited extent, defendants' rights cannot be taken away.
8. Learned advocate, Shri Anjaria, for the original plaintiff, however, is justified in urging that having taken the benefit of part of the order dated 11.6.1999 by removing the ship, of-course, after fulfilling the conditions, the defendants cannot urge before the trial Court that now the ship is no longer within the jurisdiction of the Court and the Court would cease to have jurisdiction to entertain the suit. However, this is not the same thing as to suggested, that on other grounds if the defendants have legal submissions to place before the trial Court to point out that application Exh.9 even otherwise, should not have been entertained, they are precluded from doing so.
9. Though in the impugned order, learned Judge has recorded that he has heard the parties before passing the order, it appears that no legal arguments were advanced. In any case, none of the contentions are recorded in the order. Learned Judge can be understood to have conveyed that no further order is required on application Exh.9. He disposed of the application accordingly. Surely, interim injunction application cannot be disposed of in this manner after passing ex-parte ad-interim injunction in favour of the plaintiff. Such an application should meet with a logical legal end either in the form of confirming the relief to enure till final disposal of the suit or to vacate the relief and release the defendant from the clutches of the interim injunction.
10. Though, there is considerable delay on part of the petitioner in pursuing his remedy, it is stated by the learned advocate for the petitioner that so far trial has not even commenced and issue are also not framed.
11. Under the circumstances, impugned order 3.12.2007 is quashed. Learned trial Judge is requested to hear both sides on final relief that can be granted on application Exh.9 and pass order thereon in accordance with law. It is clarified that neither in this application Exh.9 nor in the main suit, it would be open for the petitioner herein to contend that simply because under the interim order dated 11.6.199 vessel moved from Mumbai, the trial Court ceased to have jurisdiction to entertain the suit. All other contentions of both sides are kept open. The anxiety of the original plaintiff that if ultimately, the petitioner is permitted to withdraw the security, the decree even if passed in the favour of the plaintiff would be nugatory may be one of the grounds to consider while deciding application Exh.9. But, the same cannot be the sole ground and legal contentions of both sides have to be gone into before deciding what final order should be passed on the application. It will be open for the petitioner to request for early conclusion of the said application and the learned Judge will consider the same depending upon the workload.
12. Accordingly, petition is disposed of. Rule is made absolute to the aforesaid extent."
Thus, it clearly transpires that this Court while disposing of the aforesaid civil application, issued necessary directions to the trial Court, which the trial Court was required to keep in mind at the time of finally disposing of the application, Exh.9 on merits. As observed above in paragraph 11 in said order, this Court has specifically observed that the anxiety of the original plaintiff that if ultimately the petitioner is permitted to withdraw the security, the decree even if passed in favour of the plaintiff, would be nugatory, may be one of the grounds to consider, while deciding the application, Exh.9, but, the same cannot be the sole ground, and the legal contentions of both the sides have to be gone into before deciding, and the final order should be passed on the application. It transpires that despite such specific observation of this Court in paragraph 11, in the impugned order passed by the trial Court, it has been observed that if at all, the application, Exh.9, should be dismissed, then at the end of trial, if any decree is passed in favour of the plaintiff, then the question of execution of said decree would arise. This Court specifically observed that this may be one of the grounds, but not the sole ground. Considering the ratio laid down by this Court in M/s.Rajasthan Cylinder & Container Ltd. & Anr. v.Essar Steel Ltd. (supra) in a matter arising under Order 38 Rule 5 of the CPC, this Court specifically observed that the Court must be satisfied that there is reasonable chance of decree being passed in suit against the defendant. It is further observed that even in a case where the plaintiff has established that the defendant was attempting to remove or dispose of his assets with intention of defeating the decree that may be passed, in that case also, if prima-facie found that there is no reasonable chance of the decree to be passed in suit against the defendant, the Court may not pass order under Order 38 Rule 5 of the C.P.C.
In above view of the matter and the bare perusal of the impugned order passed by the trial Court, would clearly reveal that the trial Court while passing the impugned order, failed to take into consideration the directions issued by this Court in the above- referred order dated 17.9.2008. In the result, the impugned order dated 11.5.2011 deserves to be interfered with and deserves to be quashed and set-aside and the trial Court is required to be directed to hear and decide the application, Exh.9 in the suit in accordance with law and in terms of the observations made by this Court in order dated 17.9.2008 in Special Civil Appln.No.6254 of 2008. It is further required to be considered that the suit is of the year 1998 and as submitted, even till date, no issues are framed by the trial Court. In that view of the matter, the trial Court is required to be directed to dispose of the application, Exh.9 within stipulated time.
For the foregoing reasons, the application is allowed and the impugned order dated 11.5.2011 passed by learned Sr.Civil Judge, Gandhidham, Kutch below application, Exh.9 in Special Civil Suit No.46 of 1998 is quashed and set-aside and the trial Court is directed to hear and decide the said application, Exh.9, afresh, in accordance with law and in terms of the directions issued by this Court in order dated 17.9.2008 in Special Civil Appln.No.6254 of 2008. The trial Court is further directed to dispose of the application, Exh.9 in accordance with law, as ordered above, as expeditiously as possible, but not later than 11.5.2011. Registry is directed to communicate this order forthwith to the trial Court.
Since the appeal stands disposed of, the civil application for stay loses its survival value and stands disposed of.
(J.C.UPADHYAYA, J.) (binoy) Top