2000 Supreme(Cal) 55

High Court Of Calcutta
S. K. SEN, D. P. KUNDU
SUPRATIK GHOSH - Appellant
Versus
PASARI HOUSING DEVELOPMENT PVT.LTD - Respondent
F. M. A. T.  4042  Of  1999
Decided On : 01/31/2000

Order 39 Rule 3 of CPC has full application in respect of any case under section 9 of the Act of 1996 and the requirements of section 9 of the Act of 1996 have not been complied with while issuing the interim order under appeal.

Headnote:

ARBITRATION ACT, 1996 - SECTION 9 - INJUNCTION - INTERIM MEASURES - COURT'S JURISDICTION - SCOPE AND EXTENT - ORDER 39 RULE 3 OF THE CODE OF CIVIL PROCEDURE, 1908 - APPLICABILITY - REASONS FOR GRANTING EX PARTE INJUNCTION - NECESSITY - NON-COMPLIANCE WITH REQUIREMENTS - EFFECT - JURISDICTIONAL ERROR - NULLITY OF ORDER.

Fact of the Case:

The respondents, in Title Suit No. 132 of 1999 preferred an application under section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act of 1996 ). In the said application the respondents prayed for the following reliefs:"your petitioner, therefore, humbly prays that Your Honour may graciously be pleased to pass an order of injunction restraining the respondents their agents, servants, assigns from taking any step or further steps in breach of as in derogation of the agreement dated 3rd September, 1993 and/or in furtherance of the purported Notice dated 20th September, 1999 and/or in any manner that would amount to interfering with the petitioner's possession, occupation and user of the premises No. 16a, Gurusaday Road, Calcutta-700 019, and/or in (illegible) transferring and/or disposing of and/or (illegible) by third party's interest in the said property and pass such ad-interim orders in terms of prayer above, and pass such Further or other order or orders and/or direction or directions as your Honour may deem fit and proper".

Finding of the Court:

The Court held that Order 39 Rule 3 of CPC has full application in respect of any case under section 9 of the Act of 1996. The Court further held that the Trial Court committed errors which have relation to or are concerned with questions of jurisdiction of the said Court because firstly, Court has been prohibited to pass an ex parte interim order, secondly, though an exception has been made yet a condition precedent has been created for exercising under such exception and such condition precedent is that the Court should and is bound to record reasons for passing expert injunction. This aspect of the matter cannot be said to be or described as an error within the jurisdiction.

Issues: 1. Whether Order 39 Rule 3 of the Code of Civil Procedure, 1908 (CPC) has any manner of application in determination of an application under section 9 of the Arbitration and Conciliation Act, 1996 (Act of 1996)? 2. Whether the requirements of section 9 of the Act of 1996 have been complied with while issuing the interim order under appeal?

Ratio Decidendi: 1. Order 39 Rule 3 of CPC has full application in respect of any case under section 9 of the Act of 1996. Section 9 of the Act of 1996 clearly shows that the Court is competent to deal with an application under section 9 of the Act of 1996 shall have the same power of making orders as it has for the purpose of, and in relation to, any proceedings before it. It goes without saying that the term "court" as mentioned in section 9 of the Act of 1996 clearly means, amongst others, principal Civil Court of original jurisdiction in a district, as laid down in section 2 (e) of the Act of 1996. Section 2 (4) of CPC clearly laid down that the local limits of the jurisdiction of a principal Civil Court of original jurisdiction is termed as "district" and the said principal Civil Court of original jurisdiction is called as "district Court". Section 141 of CPC makes it abundantly clear that the procedure provided in CPC in regard to suit shall be followed as far as it can be made applicable in all proceedings in any Court of Civil Jurisdiction. 2. The requirements of section 9 of the Act of 1996 have not been complied with while issuing the interim order under appeal. Rule 3 of Order 39 of CPC is quoted herein below: "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 of 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."

Final Decision: The appeal is allowed. The application is accordingly disposed of. However, there shall not be any order as to costs.