JUDGMENT - V.S. Desai, J.

(1) This is an appeal from the order passed by Mr. Justice K. K. Desai dismissing the Notice of Motion taken out by the plaintiffs in suit No. 303 of 1960 in the Ordinary Original Civil Jurisdiction of this Court.

(2) The Plaintiffs are the purchasers of a sulpur dioxide plant agreed to be sold to them by the defendants, 1, 2 and 3 who are foreign corporations. The plaintiffs have paid to the defendants 85 per cent of the price agreed for the sulpur dioxide plant and for the balance of the purchase price they have executed promissory notes in favour of defendants 1 to 3. These promissory notes have been "backed" for the plaintiffs by the State Bank of India, which is the 4th defendant in the suit. The present suit of the plaintiffs is on the basis that the defendants have committed a breach of the contract and the plaintiffs have, therefore, been entitled to the reliefs, which they have claimed in the suit. These reliefs are for recovery of certain amounts from the defendants, for cancellation of the promissory notes and also for an order restraining the 4th defendant from making payments on the promissory notes to defendats 1 to 3. the plaintiffs have also prayed for apropriate interim reliefs. The suit was filed on the 13th September 1960 and on the same day the plaintiffs took out a Notice of Motion for interim injunctions restraining defendants 1 to 3 from receiving any amount under the outstanding promissory notes and/or from presenting the promissory notes for payment to the 4th defendant or from otherwise enforcing from the 4th defendant, the bank, payment of the promissory notes amount and for a further injunction restraining the 4th defendant from making payment to defendants 1-3 under the outstanding promissory notes. This Notice of Motion was dismissed by Mr. Justice K.K. Desai on 22nd November 1960 and aggrieved by the said order the plaintiffs have filed the present appeal.

(3) A preliminary point has been raised by the leaqrned counsel appearing for the respondents that no appeal lies. It isw contended that the order refusing an interim injunction is not a judgment within the meaning of clause 15 of the Letters Patent and the appeal from the order, therefore, is not competent. In support of the submission he has relied on Vanichand Rajpal v. Lakhmichand Maneckchand, 21 Bom LR 955: (AIR 1920 Bom 309); Jai Hind Iron Mart v. Tulsiram Bhagwandas, 54 Bom LR 844; (AIR1953 Bom 117); Salemahomed haji haroon Kably v. Mahomed Taher Jaffrani, 59 Bom LR 1193; (AIR 1958 Bom 210) and an unreported decision of this Court in Appeal No. 71 of 1958 from an order in a suit on the Original side, decided on 12th March 1959 (Bom), by Chainani, C. J. and S. T. Desai, J.

(4) In 21 Bom LR 955; (AIR 1920 Bom 309) it was held that order refusing to restrain the defendant by anorder and injunction from prosecuting his suit in a foreign Court is not a judgment within the meaning of clause 15 of the Letters Patent and no appeal lies from such an order. It was observed by Macleod C. J. that a judgment in Clause 15, according to the decision inJustices of the Peace for Calcutta v. Oriental Gas Co., (1872) 8 Beng LR 433 which has been followed in this Court, means a decision which affects the merits of the question between the parties by determining some right or liability. The order refusing an injunction restraining the defendant from prosecuting his suit instituted in a foreign Court did not affect the merits of the question between the parties by determining some right or liability. It was suggested in that case that the refusal to grant the injunction was likely to oust the jurisdiction of the Court by reason of the suit in the foreign Court having been decided earlier, and the order, therefore, was one which affected the merits of the question between the parties involved in the suit. This argument was not accepted and it was pointed out that that was not the direct consequence of the order and the mere possibility of

Click Here to Read the rest of this document