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High Court Of Calcutta
Dipankar Datta, J.
W.E.B.E.L. Informatics Limited - Appellants
Vs
Embee Software Private Limited - Respondents
C.O. No. 1926 of 2011
Decided on: July 08, 2011
TENDER - INJUNCTION - EX-PARTE AD-INTERIM INJUNCTION - GRANT OF - PRINCIPLES - EXPLAINED.
Fact of the Case:
The plaintiff, a distributor of LCD Multimedia Projectors, challenged the tender process initiated by the first defendant, acting as a nodal agent of the State, for procuring only DLP Multimedia Projectors, alleging mala fide, violation of guidelines issued by the Central Vigilance Commission, and discrimination against LCD Multimedia Projector suppliers.
Finding of the Court:
The Court held that the plaintiff failed to establish a strong prima facie case for grant of ex-parte ad-interim injunction. It found that the first defendant had not acted contrary to the terms of entrustment made by the State and that the State had not taken exception to the process initiated by the first defendant. The Court further held that the plaintiff's attempt to dictate terms to the first defendant was impermissible and that the allegations of mala fide were not supported by sufficient averments and particulars. The Court also held that the guidelines issued by the Central Vigilance Commission were advisory in nature and did not have statutory force, and therefore, could not be enforced in a court of law.
Issues: 1. Whether the plaintiff had set up a strong prima facie case for grant of ex-parte ad-interim injunction? 2. Whether the first defendant had acted contrary to the terms of entrustment made by the State? 3. Whether the State had taken exception to the process initiated by the first defendant? 4. Whether the plaintiff's attempt to dictate terms to the first defendant was permissible? 5. Whether the allegations of mala fide were supported by sufficient averments and particulars? 6. Whether the guidelines issued by the Central Vigilance Commission were binding on the first defendant?
Ratio Decidendi: 1. A strong prima facie case for grant of ex-parte ad-interim injunction requires the plaintiff to establish a clear right, an imminent and irreparable injury, and the absence of an adequate remedy at law. 2. The first defendant, acting as a nodal agent of the State, had the authority to initiate the tender process for procuring DLP Multimedia Projectors, and the State had not taken exception to the process. 3. The plaintiff, as a tenderer, could not dictate terms to the first defendant, as it would amount to an impermissible interference with the tender process. 4. The allegations of mala fide against the first defendant were not supported by sufficient averments and particulars, and therefore, could not be entertained by the Court. 5. The guidelines issued by the Central Vigilance Commission were advisory in nature and did not have statutory force, and therefore, could not be enforced in a court of law.
Final Decision: The Court set aside the impugned order granting ex-parte ad-interim injunction and dismissed the plaintiff's applications for injunction filed in the trial Court and the Appellate Court, along with the Misc. Appeal.
1. THIS revisional application under Article 227 of the Constitution of India is directed against Order No. 3 dated May 12, 2011 passed by the learned District Judge-in-Charge, 24-Parganas (South) at Alipore in Misc. Appeal No.219 of 2011, filed at the instance of the plaintiff in T.S. No.1214 of 2011 and pending on the file of the learned Civil Judge (Junior Division), 2nd Court, Alipore.
2. BY the impugned order, while issuing notice requiring the respondent No. 1 to show-cause within 10 days of service as to why it shall not be restrained as prayed for, ex-parte ad-interim injunction was granted till June 9, 2011 restraining the respondent No. 1 in the appeal and/or its officers/agents "from opening tender dated 25.02.2011 and/or giving its effect/further effect without incorporating LCD Multimedia Projector along with DLP Branch." The appellant was directed to comply with provisions of clauses (a) and (b) of the proviso to Rule 3 of Order 39 of the Code of Civil Procedure. The decisions the Supreme Court reported in 1993 (3) SCC 161 (Shiv Kumar Chadha v. Municipal Corporation of Delhi and Ors.) and 1994 (4) SCC 225 (Morgan Stanley Mutual Fund v. Kartick Das) are authorities delineating the principles for grant of ex-parte ad-interim injunction, yet, the learned Judge of the appellate Court proceeded to grant ex-parte ad-interim injunction by recording as follows:-
"On perusal of the petition and annexed documents, I am of the view that a strong prima facie case has been made out and that there is urgency in the matter and that delay is likely to defeat the object for which the injunction has been prayed for".
3. THIS is nothing but reproduction of the words of the statute and may be used as a rubber stamp whenever and wherever the learned Judge considers it necessary to grant ex parte ad-interim injunction. The order impugned is in the teeth of the decisions referred to above and warrants to be set aside without much argument. I was inclined to set aside the order impugned and direct the learned Judge of the appellate Court to hear the application for injunction filed by the plaintiff/appellant afresh without expressing any opinion on the merits of its claim. However, Mr. Chatterjee, learned Advocate for the plaintiff/appellant (opposite party No. 1 herein) submitted that for the failure of the learned Judge to record reasons and to conduct himself properly, the plaintiff ought not to suffer and that it ought to be considered whether on the facts pleaded in the plaint as well as the application for temporary injunction, any case for grant of the prayers made in the application had been set up or not.
4. ACCEPTING Mr. Chatterjee's submission, the parties were heard at length. I propose to consider whether the order of injunction granted by the learned Judge of the appellate Court ought to be continued or not. I may place on record that the injunction granted by the impugned order was operative till June 9, 2011 and it was extended on that date for a further period of a month. Mr. Chatterjee had contended that since the impugned order merged in the order dated June 9, 2011 and there being no challenge to the subsequent order, the application is not maintainable.
5. IT has, however, been conceded that the limited interim order of injunction was extended on June 9, 2011 not on contest but suo motu; on that day, the members of the local bar did not attend Court in support of a call for cease work.
6. THE objection raised by Mr. Chatterjee regarding maintainability of this application is plainly not acceptable. Power under Article 227 may be exercised by the High Court, in an appropriate case, suo motu. THE impugned order is such that it satisfies all the ingredients for which an order could be termed to have been passed 'without jurisdiction'. Irrespective of whether or not the subsequent order has been challenged, nothing prevents the High Court to exercise its power of judicial superintendence to ensure that the subordi
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