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2014 DIGILAW 595 (CAL)

Tivoli Park Apartments Private Limited v. Shrawan Kumar Todi

2014-07-07

R.K.BAG

body2014
JUDGMENT R. K. Bag, J. This application under Article 227 of the Constitution of India is directed against order dated 7th January, 2014 passed by Learned Additional District Judge, 14th Court, Alipore, South 24-Parganas in Misc. Appeal No.472 of 2013 arising out of order dated 20.09.2013 passed by Learned Civil Judge (Senior Division), 2nd Court, Alipore in Title Suit No.22050 of 2013, by which Learned Judge of the Court below extended the interim order of injunction granted on 1st October, 2013 till the disposal of the said Misc. Appeal. 2. It appears from the materials on record that the Opposite Parties No.1 to 10 instituted Title Suit No.22050 of 2013 against the petitioner and the Opposite Parties No.11 to 27 in the Court of Learned Civil Judge (Senior Division), 2nd Court, Alipore for declaration with regard to shares in the company, partition, mandatory injunction and permanent injunction. The Opposite Parties No.1 to 10/plaintiffs filed an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure in the said suit praying for an order of ad interim injunction and the said prayer was refused by the Trial Court by passing order on 20.09.2013. The Opposite Parties No.1 to 10 challenged the order dated 20.09.2013 passed by the Trial Court in Title Suit No.22050 of 2013 by preferring Misc. Appeal No.472 of 2013 before the Court of Learned District Judge, Alipore. By filing an application under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure the Opposite Parties No.1 to 10/appellants prayed for an order of ad interim injunction against the present petitioner and the Opposite Parties No.11 to 27. On 01.10.2013 Learned District Judge, Alipore passed an order of ad interim injunction directing both the parties to maintain status quo in respect of negotiating with the Respondent No.15 i.e. the present petitioner and/or surrendering the deed of lease dated 12.04.2006 in favour of the Respondent No.17 or to hand over possession of the suit premises in favour of the Respondent No.17 and from alienating or encumbering over the property described in Schedule - I of the application for temporary injunction for a limited period till 08.11.2013. The said order of ad interim injunction passed on 01.10.2013 in Misc. Appeal No.472 of 2013 was extended by order dated 8th November, 2013 and thereafter again extended till 27th November, 2013. 3. The said order of ad interim injunction passed on 01.10.2013 in Misc. Appeal No.472 of 2013 was extended by order dated 8th November, 2013 and thereafter again extended till 27th November, 2013. 3. It further appears from record that the petitioner being the Respondent No.15 of Misc. Appeal No.472 of 2013 challenged the order dated 08.11.2013 passed by Learned District Judge, Alipore in the said Misc. Appeal by filing C.O. No.3879 of 2013. By passing an order on 26.11.2013 in C.O. No.3879 of 2013 this Court gave direction to the First Appellate Court to consider whether the appellants have complied with the provisions of Order 39 Rule 3(a) and (b) of the Code of Civil Procedure pursuant to the order passed on 1st October, 2013 and to dispose of the objection raised by the present petitioner against the application for extension of interim order by giving adequate reasons and to pass appropriate order on matter of injunction only after disposal of such objection and to complete the entire exercise within 27th November, 2013. 4. It also appears from record that on 27.11.2013 Learned Additional District Judge, 5th Court, Alipore again extended the order of ad interim injunction till 21.12.2013 by holding that the appellants have complied with the provision of Order 39 Rule 3(a) and (b) of the Code of Civil Procedure on 03.10.2013 and by rejecting the objection raised by the present petitioner without assigning specific reasons. This order dated 27.11.2013 passed by Learned First Appellate Court in Misc. Appeal No.472 of 2013 was again challenged before this court by the present petitioner by filing C.O. No.4053 of 2013. By passing order on 19.12.2013 in C.O. No.4053 of 2013 this court observed that the First Appellate Court was satisfied about compliance with the provision of Order 39 Rule 3(a) and (b) of the Code of Civil Procedure by the appellants. However, by the said order this court also observed that the First Appellate Court extended the interim order of injunction without considering the objection raised by the present petitioner and without disposing of the said objections by recording appropriate reasons as directed by this court on 26.11.2013 in C.O. No.3879 of 2013, but this court reserved the appropriate action in this regard for the time being. However, by order dated 19.12.2013 passed in C.O. No.4053 of 2013 this court gave direction to the First Appellate Court to dispose of the application for temporary injunction on 21st December, 2013 or immediately thereafter on the next working day. Thereafter, on 07.01.2014 Learned First Appellate Court extended the order of ad interim injunction till the disposal of the Misc. Appeal No.472 of 2013 without dealing with the specific objections raised by the present petitioner. This impugned order dated 07.01.2014 passed by Learned First Appellate Court in Misc. Appeal No.472 of 2013 has been challenged by the petitioner who happens to be the Respondent No.15 of the Misc. Appeal. With the above factual matrix, I would like to consider the submissions made on behalf of the petitioner and the Opposite Parties No.1 to 10. 5. Mr. Anindya Kumar Mitra, Learned Senior Counsel appearing on behalf of the petitioner submits that Learned Judge of the First Appellate Court extended the order of interim injunction till 21.12.2013 by wrongly holding that the appellants have complied with the provisions of Order 39 Rule 3 (a) and (b) of the Code of Civil Procedure on 03.10.2013 and without dealing with the objections raised by the petitioner by assigning specific reasons, in violation of the direction given by this court on 26.11.2013 in C.O. No.3879 of 2013. Mr. Mitra also contends that Learned First Appellate Court again extended the order of interim injunction till the disposal of the Misc. Appeal No.472 of 2013 without considering the specific objections raised by the present petitioner in violation of the order passed by this court on 19.12.2013 in C.O. No.4053 of 2013. According to Mr. Mitra, the Opposite Parties No.1 to 10 being the plaintiffs of the Title Suit have failed to make out a prima facie case to go for trial in as much as the shareholder of the company cannot have any interest in the property of the company. By referring to Paragraph 13 (b), (c) and (d) of the application under Article 227 of the Constitution of India, Mr. By referring to Paragraph 13 (b), (c) and (d) of the application under Article 227 of the Constitution of India, Mr. Mitra has urged this court to consider that the plaintiffs are neither the shareholders of the company nor the directors of the company, as they have already transferred their small number of shares in the petitioner company against valuable consideration as recorded in the memorandum of understanding dated 16th November, 2006 and as such the plaintiffs/appellants have failed to make out a prima facie case for ad interim injunction. Mr. Mitra has relied on the following four decisions -(i) “Partha Sarathi Ghosh V. Srilekha Ghosh” reported in 1999(2) Cal L T 141, (ii) “Alcove Construction Pvt. Ltd. V. Rabiya Bibi” reported in 2014(1) CHN (Cal) 684, (iii) “Secretary & Curator, Victorial Memorial Hall V. Howrah Ganatantrik Nagrik Samity” reported in (2010) 3 SCC 732 and (iv) “Rukmini Properties Pvt. Ltd. V. Mira Ghosh” reported in 2013 (5) CHN 309 in support of his two-fold contentions: first, if the subordinate court refuses to follow the order passed by the higher court, the order of the subordinate court occasions failure of justice and secondly, the order not supported by reasons will not only be arbitrary, fanciful and vague, but also not sustainable in law. 6. Mr. S. K. Kapur, Learned Senior Counsel appearing on behalf of the Opposite Parties No.1 to 10 submits that the Learned First Appellate Court has rightly observed that the appellants have complied with the provisions of Order 39 Rule 3 (a) and (b) of the Code of Civil Procedure, 1973 on 03.10.2013. Mr. Kapur has defended the orders passed by Learned First Appellate Court by extending the order of interim injunction from time to time till the disposal of the Misc. Appeal No.472 of 2013. According to Mr. Kapur, the petitioner being the Respondent No.15 before the First Appellate Court along with other respondents practised fraud in the transfer of share of the petitioner company in as much as the date is not mentioned in the memorandum of understanding between the parties for the purpose of transfer of share for valuable consideration. Mr. Kapur also submits that this court can give direction to the First Appellate Court to dispose of the Misc. Mr. Kapur also submits that this court can give direction to the First Appellate Court to dispose of the Misc. Appeal No.472 of 2013 on the next date of hearing without interfering in the order challenged before this court by way of revision under Article 227 of the Constitution of India. Mr. Kapur has relied on the decision of “Metro Cash & Carry India Pvt. Ltd. V. Sasanka Sanfui & Ors.” reported in 2007(3) CHN 451 in support of the contention that this court can exercise the jurisdiction under Article 227 of the Constitution of India only when Learned Appellate Court has exercised the jurisdiction in a manner not permitted by law and thereby failure of justice has occasioned. No submission is made on behalf of the other opposite parties in connection with this revision. 7. I have already observed that by passing order on 26.11.2013 in C.O. No.3879 of 2013 this court gave direction to the First Appellate Court to consider whether the appellants have complied with the provisions of Order 39 Rule 3 (a) and (b) of the Code of Civil Procedure pursuant to the order of ad interim injunction passed on 1st October, 2013 and to dispose of the objections raised by the present petitioner against the application for extension of interim order by giving adequate reasons and thereafter to pass appropriate order on matter of injunction. On perusal of the impugned order dated 27.11.2013 passed by Learned First Appellate Court, I find that Learned First Appellate Court came to the conclusion that the appellants have complied with the provisions of Order 39 Rule 3 (a) and (b) of the Code of Civil Procedure even though the appellants did not supply copy of plaint of the Title Suit and the date of order of ad interim injunction at the time of communicating the gist of the order and supplied incomplete memorandum of appeal. According to Learned Judge of the First Appellate Court, the copy of plaint need not be supplied to the petitioner as the order of injunction was passed in connection with the Misc. Appeal and as such supply of incomplete memorandum of appeal was considered to be due compliance with the provision of Order 39 Rule 3 (a) and (b) of the Code of Civil Procedure by Learned Judge of the First Appellate Court. Appeal and as such supply of incomplete memorandum of appeal was considered to be due compliance with the provision of Order 39 Rule 3 (a) and (b) of the Code of Civil Procedure by Learned Judge of the First Appellate Court. In this connection it is relevant to point out that the appellants preferred the Misc. Appeal against the order of refusal of ad interim injunction by learned Trial Court and as such the petitioner being the defendant of the Title Suit has had no opportunity to receive copy of the plaint. It was, therefore, necessary on the part of the appellants to supply not only the copy of complete memorandum of appeal, but also copy of plaint of the Title Suit to the respondents including the present petitioner for due compliance with the provisions of Order 39 Rule 3 (a) and (b) of the Code of Civil Procedure, which has not been done in the instant case. By pointing out the relevant portion of the order dated 19.12.2013 passed in C.O. No.4053 of 2013 Mr. Kapur contended that this court was satisfied about the compliance with the provision of Order 39 Rule 3 (a) and (b) of the Code of Civil Procedure by the appellant and did not accept the contention of Mr. Mitra. In this regard, I would like to observe that this court only recorded the satisfaction of the Learned First Appellate Court with regard to the compliance with the provisions of Order 39 Rule 3 (a) and (b) of the Code of Civil Procedure and thereby observed that the contention of Mr. Mitra would not sustain. In my view, the provision of Order 39 Rule 3 (a) and (b) of the Code of Civil Procedure has not been complied with by the appellants in letter and spirit in as much as the copy of the plaint was not supplied to the respondents and incomplete memorandum of appeal was supplied to the respondents and the date of order of ad interim injunction was not communicated to the respondents at the time of communicating the gist of the said order. 8. On perusal of the impugned order dated 07.01.2014 passed by Learned First Appellate Court, I find that Learned Judge of the First Appellate Court did not deal with the objections raised by the present petitioner by assigning specific reasons. 8. On perusal of the impugned order dated 07.01.2014 passed by Learned First Appellate Court, I find that Learned Judge of the First Appellate Court did not deal with the objections raised by the present petitioner by assigning specific reasons. Learned Judge of the First Appellate Court has observed that the respondents including the present petitioner could not make out any case to discontinue extension of ad interim order of injunction and Learned Judge was afraid of going into the merit of the case, but extended the order of ad interim injunction till the disposal of the Misc. Appeal. Since, Learned Judge has extended the order of ad interim injunction till the disposal of Misc. Appeal without considering the objections raised by the present petitioner by assigning specific reasons, I am of the view that Learned Judge of the First Appellate Court violated the direction given by this court on 19.12.2013 in C.O. No.4053 of 2013 as contended on behalf of the petitioner. 9. The decision of “Metro Cash & Carry India Pvt. Ltd. V. Sasanka Sanfui & Ors.” reported in 2007(3) CHN 451 cited by Mr. Kapur lays down the criteria for exercise of jurisdiction under Article 227 of the Constitution of India. The High Court refused to exercise the jurisdiction under Article 227 of the Constitution of India, because the conditions necessary for exercising jurisdiction under Article 227 of the Constitution of India by way of interfering with the impugned order did not exist in the said case. The Single Judge of our High Court held in Paragraph 21 of the said decision as follows: “The question in the present case is whether or not the Learned Lower Appellate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available has been exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby.” In view of the above proposition of law, this court can exercise the jurisdiction under Article 227 of the Constitution of India by way of interfering with the impugned order challenged in this case only if the First Appellate Court has failed to exercise the jurisdiction conferred on it by law and thereby failure of justice or grave injustice has occasioned. 10. 10. It is held by our High Court in Paragraph 18 of “Partha Sarathi Ghosh V. Srilekha Ghosh and Anr.” reported in 1999(2) Cal L T 141 (HC) that “if in spite of an order passed by a higher court which is otherwise binding upon the parties, a subordinate court refuses to follow the said order, such order occasions failure of justice.” With regard to the violation of the principles of natural justice, it is held in Paragraph 19 of “Alcove Construction Pvt. Ltd. V. Rabiya Bibi” reported in 2014(1) CHN (Cal) 684 as follows: “This is, in my view, the violation of natural justice in consideration of the fact that the defendant No.1 is contesting the suit all along and on one day, i.e., on November 16, 2011 he could not take steps. This does not mean that the defendant was not willing to proceed with the suit. In fact, before the order dated November 16, 2011, the defendant No.1 had already filed a written objection against the application for temporary injunction. Under such circumstances, without consideration of the contention of the defendant No.1 as raised in the written objection, the order simply noting that since the matter was proceeding against both the defendants ex parte, the order of ad interim injunction had been made absolute, cannot be supported. This is the violation of natural justice.” In the instant case, Learned Judge of the First Appellate Court extended the order of ad interim injunction from time to time till the disposal of the Misc. Appeal without considering the objections raised by the present petitioner by assigning specific reasons in violation of the direction given by the High Court and as such the impugned order passed by Learned First Appellate Court has occasioned failure of justice as per principle of law enunciated in “Partha Sarathi Ghosh V. Srilekha Ghosh & Anr.” reported in 1999(2) Cal L T 141 (HC). Moreover, since Learned First Appellate Court extended the order of ad interim injunction from time to time till the disposal of the Misc. Moreover, since Learned First Appellate Court extended the order of ad interim injunction from time to time till the disposal of the Misc. Appeal without consideration of the objections raised by the present petitioner by assigning specific reasons in violation of the direction given by this court by simply observing that the objections raised on behalf of the petitioner have been duly considered, I am of the view that Learned Judge of the First Appellate Court also violated the principles of natural justice as per proposition of law laid down in Paragraph 19 of the decision of “Alcove Construction Pvt. Ltd. V. Rabiya Bibi” reported in 2014(1) CHN (Cal) 684. 11. The proposition of law laid down by the Division Bench of our High Court in Paragraph 11 of the decision of “Rukmini Properties Pvt. Ltd. V. Mira Ghosh” reported in 2013(5) CHN 309 is as follows: “It is now well-settled in our judicial discipline that any order passed by the court should ordinarily be supported by the reasons, because the reasons express the thought process of the court which weighed with the court to pass such order. Mere quoting a few words from the statute or reiteration of something from the pleading would not amount to reason. I am of the view that the order which is subject matter of the present appeal did not disclose any reason why the interim order was necessary and passed by the court. In my opinion, an order even if it is of a court is not supported by any reason that would render the order arbitrary, fanciful and vague. Even an order of a court cannot be permitted to be arbitrary, fanciful or vague.” The proposition of law laid down by the apex court in Paragraphs 41 and 42 of the decision of “Secretary and Curator, Victoria Memorial Hall V. Howrah Ganatantrik Nagrik Samity and Ors.” reported in 2010(3) SCC 732 is as follows: “Reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, it becomes lifeless. Reasons substitute subjectivity by objectivity. Absence of reasons renders the order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum …….It is evident that the recording of reasons is a principle of natural justice and every judicial order must be supported by reasons recorded in writing. Reasons substitute subjectivity by objectivity. Absence of reasons renders the order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum …….It is evident that the recording of reasons is a principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected may know, as to why his application has been rejected…..” In the instant case, Learned First Appellate Court extended the order of ad interim injunction from time to time till the disposal of the Misc. Appeal without considering the objections raised by the petitioner by assigning specific reasons in spite of specific direction given by the High Court in C.O. No.3879 of 2013 and in C.O. No.4053 of 2013. Thus, Learned First Appellate Court has not only violated the specific direction given by this court, but also failed to consider the objections raised by the petitioner by assigning specific reasons. In view of the proposition of law laid down by the apex court in the decision reported in 2010(3) SCC 732 and by our High Court in the decision reported in 2013(5) CHN 309 the impugned order dated 7th January, 2014 passed by Learned First Appellate Court in Misc. Appeal No.472 of 2013 is not sustainable in law. 12. It is submitted from the Bar that the contesting opposite parties being the appellants of the Misc. Appeal have filed an application under Section 151 of the Code of Civil Procedure for direction to the present petitioner being the Respondent No.15 of the Misc. Appeal to produce the original memorandum of understanding dated 16th November, 2006 wherein it is recorded that the appellants have transferred their shares in the company for valuable consideration. It is also submitted from the Bar that some shareholders of the company have filed an application under Order 1 Rule 10 of the Code of Civil Procedure for being impleaded as parties in the suit. Since, the Misc. Appeal can be disposed of by the Learned Judge of the First Appeal Court without impleading any other person in the said proceeding, Learned Judge of the First Appellate Court can leave the fate of the application under Order 1 Rule 10 of the Code of Civil Procedure to be decided by the Trial Court within specified period of time. Appeal can be disposed of by the Learned Judge of the First Appeal Court without impleading any other person in the said proceeding, Learned Judge of the First Appellate Court can leave the fate of the application under Order 1 Rule 10 of the Code of Civil Procedure to be decided by the Trial Court within specified period of time. However, Learned Judge of the First Appellate Court must dispose of the application under Section 151 of the Code of Civil Procedure filed by the appellants before disposing of the Misc. Appeal and the date of hearing of Misc. Appeal must be preponed by giving notice to both parties. 13. Accordingly, the impugned order dated 07.01.2014 passed by Learned Additional District Judge, 14th Court, Alipore in Misc. Appeal No.472 of 2013 and the order dated 27.11.2013 passed by Learned Additional District Judge, 5th Court, Alipore in Misc. Appeal No.472 of 2013 are hereby set aside. Learned Additional District Judge, 14th Court, Alipore is directed to dispose of the application under Section 151 of the Code of Civil Procedure and thereafter to dispose of the Misc. Appeal No.472 of 2013 by preponing the date of hearing, so that the Misc. Appeal can be disposed of within a period of ten days from the date of communication of this order after giving opportunity of hearing to both parties and by fixing the date of hearing of the Misc. Appeal on day-to-day basis and without granting unnecessary adjournment to either of the parties to the Misc. Appeal. Both parties are directed to appear before the Learned Judge of the First Appellate Court and to participate in the hearing in the Misc. Appeal. C.O. No.209 of 2014, C.O. No.3879 of 2013 and C.O. No.4053 of 2013 are, thus, disposed of. Let a copy of this judgment be sent down to the learned Court below forthwith for favour of information. Urgent Xerox certified copy of this judgment, if applied for, be given to the parties expeditiously after compliance with all necessary formalities. Prayer on behalf of the contesting opposite parties to stay the operation of this judgment for two weeks is refused. Let a xerox plain copy of this order duly countersigned by the Assistant Registrar (Court) be handed over to learned counsels appearing for both sides on usual undertaking as prayed for.