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IN THE HIGH COURT AT CALCUTTA
Hiranmay Bhattacharyya, J.
J. M. Financial Asset Reconstruction Company Limited - Appellant
Vs.
Abhinandan Holdings Private Limited & Anr. - Respondent
CO 3376 of 2023 With CO 1038, 1039, 1042, 1043, 1046, 1049, 1577 of 2024
Decided On : 02-08-2024
Injunction - Civil Procedure - CPC Sections 151, Order 39 - The court interpreted the provisions of Section 151 and Order 39 of the CPC, emphasizing that inherent powers cannot be exercised where express provisions exist, leading to the conclusion that the order was appealable under Order 43.
Fact of the Case:
The plaintiff filed a suit for specific performance of an agreement and sought an injunction against the defendant from transferring loan accounts. The trial court granted an ad interim injunction, which was later challenged in a civil revision application.
Finding of the Court:
The court found that the nature of the relief sought by the plaintiff fell under Order 39 of the CPC, making the injunction order appealable under Order 43, despite being captioned under Section 151.
Issues: Whether the application under Section 151 was maintainable and whether the order of injunction was appealable under the CPC.
Ratio Decidendi: The court held that the nature of the order determines its appealability, not the caption of the application, and that the order was indeed appealable under the provisions of the CPC.
Result: All civil revision applications were dismissed as not maintainable.
JUDGMENT :
Hiranmay Bhattacharyya, J.
1. CO 3376 of 2023 is at the instance of the 1st defendant and is directed against an order being No. 23 dated August 2, 2023 passed by the learned Judge, Commercial Court, Rajarhat, District 24 Parganas North in Title Suit No. 22 of 2021 (CC).
2. The order impugned therein is an ad interim order of injunction passed in terms of prayer (a) of the petition under Section 151 dated July 27, 2023 till September 16, 2023. The said ad interim order of injunction was extended from time to time and such extension orders have also been challenged in the other Civil Revision Applications. Therefore, all the Civil Revision Applications were heard analogously and are being decided by this common judgment and order.
3. The opposite party no. 1 herein as plaintiff filed a suit being Title Suit No. 22 of 2021 before the learned Judge Commercial Court at Rajarhat for specific performance of the agreement dated January 15, 2020, perpetual injunction for delivering up and cancellation of the letter dated March 2, 2020 issued by the 1st defendant to the plaintiff and for a mandatory injunction directing the 1st defendant to forthwith execute and register deed of assignment in terms of the agreement dated January 15, 2020 and for other consequential beliefs. The opposite party no. 1 filed an application under Order 39 Rule 1 and 2 read with Section 151 of the Code of Civil Procedure and the learned Trial Judge by an order being no. 2 dated September 29, 2021 restrained the petitioner herein and/or his men and agents from giving any further effect or acting on the basis of the letter dated March 2, 2020 for a limited period. Thereafter the opposite party herein filed an application under Section 151 of the Code of Civil Procedure inter alia praying for an order restraining the petitioner herein and/or his men and agents and servants from creating any third party interest over and in respect of the accounts of the plaintiff/petitioner by transferring the loan accounts of the plaintiff/opposite party no. 1 maintained with the defendant no. 1 /petitioner herein of the financial assets of the petitioner/Opposite Party no. 1 herein either to asset reconstruction company or to any banking company or to any financial institution or any other entity in law, in any manner either with or without the leave of the Court. The learned Trial Judge, by the order impugned, passed an ad interim order of injunction in terms of the prayer (a) of the petitioner filed under Section 151 for a limited period.
4. Mr. Mukherjee, learned Senior Counsel representing the opposite party no. 1 raised two fold objections against the maintainability of the application under Article 227 of the Constitution of India. He submitted that the nature of the reliefs prayed for fall within the scope of Order 39 Rule 1 and 2 of the Civil Procedure Code though the application was wrongly captioned as one under Section 151 of the Civil Procedure Code and, therefore, an appeal lies Order 43 of the Code against the order impugned. Mr. Mukherjee contended that in view of Section 13 of the Commercial Courts Act, 2015 the appeal lies before the Commercial Appellate Division of this Hon’ble Court. By referring to the decision of the Supreme Court in the case of Virudhunagar Hindu Nadargal Dharma Paribalana Sabai and Others vs. Tuticorin Educational Society and Others reported at (2019) 9 SCC 538, Mr. Mukherjee contended that in view of availability of an appellate remedy in terms of the provisions of the Civil Procedure Code, an approach to this Court by way of an application under Article 227 of the Constitution of India should not be entertained. Mr. Mukherjee further contended that the original ad interim injunction order passed on 02.08.2023 lost its force by efflux of time and, therefore, CO 3376 of 2023 is not maintainable at this stage. With regard to the scope of Article 227 of the Constitution of India, Mr. Mukherjee placed reliance upon a decision of the
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