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2008 DIGILAW 711 (ORI)

BARMESWAR PANDEY v. SRI. NARAYAN KHANDELWAL

2008-08-18

SANJU PANDA

body2008
JUDGMENT : Sanju Panda, J. - Aggrieved by the order dated 2.8.2008 passed in Arbitration Misc. Case No. 66 of 2008 by the learned District Judge II c, Balasore in exercise of the powers u/s 9 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as "the Act"), the Appellant has filed this appeal. 2. The facts of the case are as follows: Pursuant to the tender -call notice issued by the Orissa Bridge and Construction Corporation Ltd., Bhubaneswar (in short, "OBCCL") for collection of toll at Balasore, Mitrapur Baincha Road Toll Gate, the Appellant offered his bid and the said tender was fora period of one year from 1.4.2008 to 31.3.2009. As the Appellant's bid was accepted, he deposited a total sum of Rs. 22,37,433/- including the E.M.D. and also executed an agreement with the OBCCL on 31.3.2008 with a condition stipulated therein to collect toll with effect from 1.4.2008. In terms of the said agreement, the Appellant also undertook to pay the bid instalment amount specified in the agreement to the tune of a total sum of Rs. 62,90,000/- in eight instalments and the liability of the Appellant was to make payment of salary of the employees engaged for toll collection including contribution to the E.S.I. and E.P.F. on behalf of the employees and the Appellant also started collecting toll with effect from 1.4.2008. While he was continuing as such, suddenly on 3.8.2008 the present Respondents l and 2, who are no way connected or authorized in any manner with regard to collection of toll from the toll gate in question, forcibly entered inside the toll booth with the help of some anti-socials and prevented the Appellants and his employees from collecting toll. Respondent No. l produced a Xerox copy of the order dated 2.8.2008 passed by the learned District Judge I/c., Balasore in Arbitration Misc. Case No. 66 of 2008. Thereafter, the Appellant on verification from the court record came to know about the tendency of the said misc. case and further on verification, he found that Respondents 1 and 2 claiming themselves to be the partners of the Appellant on the basis of a partnership deed for management of the affairs of toll collection resorted to the proceeding u/s 9 of the Act. case and further on verification, he found that Respondents 1 and 2 claiming themselves to be the partners of the Appellant on the basis of a partnership deed for management of the affairs of toll collection resorted to the proceeding u/s 9 of the Act. In the said application, they claimed the following reliefs: a) Receiver be appointed for management of the Balasore Mitrapur Baincha Road Toll gate and for collection of Toll Tax and for keeping proper books of accounts. b) The opposite party No. l be directed to produce all the Books of Accounts before the court for preservation and inspection. c) The opposite party No. l be restrained from interfering in the management of the above Toll Gate by the Petitioners and collection of Toll Tax by them. d) Such other order and interim measures be passed in favor of the Petitioners which may appear to the court to be just and convenient. 3. They contended that the Respondents entered into a partnership agreement with the Appellant on 1.2.2008 and the said agreement was registered before the Registrar of Firms in the name and style of M/s. Balasore-Mitrapur Toll Tax Barrier and they claimed that the Appellant, not being in a position to manage the toll gate alone and to pay the minimum guarantee amount to the OBCCL, requested the Respondents to enter into a partnership agreement for management of the aforesaid toll gate. They further contended that from the time of the tender they have paid from their accounts by issuing demand draft in favor of the OBCCL on different occasions. As such, the partnership firm has already taken charge of the toll gate with effect from 1.4.2008 itself and the Appellant has only 20 per cent share in the said partnership and the Respondents being 80 per cent share- holder, they invested the money and are managing the toll gate for the first quarter with effect from 1.4.2008 by depositing money in the bank in the name of the OBCCL. Suddenly, the Appellant did not deposit the huge amount of toll collected, in the bank and misappropriated the same to the tune of Rs. 10,00,000/- to Rs. 12,00,000/- belonging to the partnership firm. Suddenly, the Appellant did not deposit the huge amount of toll collected, in the bank and misappropriated the same to the tune of Rs. 10,00,000/- to Rs. 12,00,000/- belonging to the partnership firm. When the said fact was verified by them, the Appellant threatened them with dire consequences and did not allow them to collect toll and also did not allow them to enter into the toll gate premises since 28.7.2008. As they are entitled to share of profit and loss as per the partnership agreement since they have invested huge amount towards instalments payment, etc., they filed the application as stated above. In the said application they filed a misc. case for ad interim injunction. 4. The learned District Judge I/c., Balasore took up the matter on 2.8.2008 and passed an ad interim order directing the present Appellant not to prevent the Petitioners (the present Respondents) in the management of Balasore Mitrapur Baincha Road Toll Gate and the Petitioners will have got right in the management of the aforesaid toll gate till admission of the case. He passed the said order without assigning any reason whatsoever as required under Order 39, Rule 3 of the Code of Civil Procedure. The Appellant appeared in the said case and filed a petition on 4.8.2008 supported by affidavit with a prayer to vacate the order dated 2.8.2008 and on the said objection being filed, the matter was ordered to be put up on 11.8.2008. However, the learned District Judge I/c. did not hear the matter on the ground that the Presiding Officer was absent and since he was in charge, he only gave dates. 5. Learned Counsel appearing for the Appellant submitted that the Appellant entered into the partnership agreement with the OBCCL in respect of the toll gate in question and as such, he is liable for any loss in violation or breach of the said agreement and the Respondents are no way connected with such 'agreement. Therefore, they have no prima facie case. He further submitted that as the Respondents have quantified their loss at Rs. Therefore, they have no prima facie case. He further submitted that as the Respondents have quantified their loss at Rs. 50,000/- per day, they will not suffer any irreparable loss since the same can be compensated after hearing both the sides and the balance of convenience is also not with the Respondents as they are not party to the agreement with the OBCCL and hence the court below should not have granted the ad interim injunction in favor of the Respondents. The main contention of the learned Counsel for the Appellant is that though before passing an ad interim injunction order the court has to give reason and the same is mandatory as per the provisions contained in Order 39, Rule 3, CPC and in the present case, since the- court below has not assigned any reason while passing the impugned order of ad interim injunction, the said order is illegal and liable to be set aside by this Court. In support of his contentions, he cited the decisions reported in Dorab Cawasji Warden Vs. Coomi Sorab Warden and others, wherein the apex Court formulated certain guidelines to pass relief of interlocutory mandatory injunction, and Adhunik Steels Ltd. Vs. Orissa Manganese and Minerals Pvt. Ltd. where it has been held by the apex Court that while passing interim measure of protection u/s 9 of the Arbitration and Conciliation Act, the relevant provision of the Specific Relief Act shall not kept out of consideration by the court. 6. Learned Counsel for the Respondents submitted that the court below has posted the matter to the 20th of August, 2008 and since the Respondents are the partners and are in management of the toll gate in question since 1.4.2008 and invested 80 per cent of the amount and are also continuing with the management of the toll gate, prima facie case and balance of convenience is in their favor and they will suffer irreparable loss and injury. Therefore, the court below rightly passed the ad interim injunction order and they are maintaining the accounts. Since the ad interim injunction order was passed and no [mal order has been passed by the court below, the present appeal is not able. In support of his contentions, he cited the decisions reported in Transmission Corporation of A.P. Ltd. and Others Vs. Since the ad interim injunction order was passed and no [mal order has been passed by the court below, the present appeal is not able. In support of his contentions, he cited the decisions reported in Transmission Corporation of A.P. Ltd. and Others Vs. Lanco Kondapalli Power Pvt. Ltd., and AIR 2002 SC 1433, (Firm Ashok Traders and another, etc. v. OGurumukh Das Saluja and Ors. etc.), wherein the apex Court has stated the situation under which an ad interim injunction can be granted. 7. Law is well settled that recording reasons for the opinion of the court that the object of granting the injunction would be defeated by delay is a mandatory provision and if the reasons are not recorded the order is to be taken as illegal. In the present case, after going through the records, this Court finds that the court below has not assigned any reason for passing the impugned ad interim injunction order in favor of the Respondents and the order-sheet of the court below reveals that no notice in the said misc. case has even been issued to the opposite party therein (who is the Appellant here) as required under Order 39, Rule 3, CPC Therefore, this Court, without entering into the merits of the case, sets aside the impugned order passed by the court below and directs that the court below shall now hear the matter on merits on 20.08.2008 the Appellant will file his objection, if any, and after hearing both the parties, the court shall pass a speaking order without being influenced by any observation made by this Court. 8. The appeal is accordingly allowed. Final Result : Allowed