2017 (8) TMI 970 - HC - Companies Law

Suit for specific performance, declaration and permanent injunction - ex parte ad-interim injunction - Held that - Examining the case on hand and three cardinal principles enshrined in Order 39, Rule 1 of the Code of Civil Procedure i.e. prima facie case, balance of convenience and irreparable loss is concerned, it is a matter of record that respondent Nos.1 and 2 have entered into MOU with the applicant for the land bearing Survey Nos.373 and 58/p1. It is also brought on record, which prima facie shows that the pipeline has been laid down in the month of December, 2016 and no sale deed, index or extract or any revenue records in favour of respondent No.3 has been produced on record and therefore, the applicant has very good prima facie case. The applicant being paper manufacturing unit has to keep flow of treated effluents discharged from its manufacturing unit, so as to reach into CETP in regular manner without any obstruction and therefore, the balance of convenience is in favour of the applicant. Similarly, if interim relief is not granted, the applicant will suffer irreparable loss. The facts of the case clearly establishes that it falls within the ambit of Rule 3, Order 39 of Code of Civil Procedure. The aspect whether the applicant has any easement right or not is to be examined by the learned Trial Court when the application Exh 5 is taken up for hearing threadbare. The present Appeal from Order arising out of non-grant of interim relief, present appeal is maintainable, and therefore the appeal is admitted . In the facts and circumstances of this case, in opinion of this Court, present case falls in the category of rarest of the rare case where ex parte ad-interim injunction is required to be granted to protect the subject matter of the suit at least application Exh 5 is decided by the learned Trial Court. The parties shall complete their pleadings before the learned Trial Court latest by 31st August, 2017.

Summary

Issues Involved:
1. Ownership and rights over the land in question.
2. Legitimacy of the Memorandum of Understanding (MoU) and lease agreement.
3. Entitlement to lay and maintain the pipeline.
4. Prima facie case, balance of convenience, and irreparable loss.
5. Maintainability of the appeal under Order 43, Rule 1 of the Code of Civil Procedure.
6. Grant of ex parte ad-interim injunction.

Detailed Analysis:

1. Ownership and Rights Over the Land in Question:
The applicant contended that respondent No.3 is not the owner of part of Survey No.373/3 as claimed. The court noted that respondent No.3 failed to produce the sale deed or any revenue entry to substantiate ownership. The DILR measurement sheet provided by respondent No.3 did not convincingly support their claim of ownership. The court found that the names of respondent Nos.1 and 2, along with another individual, were listed as owners and occupiers of the land in the revenue records.

2. Legitimacy of the Memorandum of Understanding (MoU) and Lease Agreement:
The applicant had entered into a MoU with respondent Nos.1 and 2, permitting the laying of a pipeline. The court observed that respondent Nos.1 and 2 did not dispute this agreement and acknowledged the pipeline's existence. The MoU and an unregistered lease-deed were considered valid prima facie evidence supporting the applicant's case. The court noted that respondent No.3 had accepted a substantial payment of ?13,00,000 from the applicant, which further validated the applicant's claims.

3. Entitlement to Lay and Maintain the Pipeline:
The applicant argued that the pipeline was essential for discharging treated effluents into the Common Effluent Treatment Plant (CETP) and that it was laid down with the consent of respondent Nos.1 and 2. The court found that the pipeline was indeed laid down before the alleged purchase date by respondent No.3, as corroborated by invoices and bank entries. The court concluded that the applicant had a legitimate right to maintain the pipeline based on the MoU and the payments made.

4. Prima Facie Case, Balance of Convenience, and Irreparable Loss:
The court determined that the applicant had a strong prima facie case, as the pipeline was crucial for their manufacturing operations and environmental compliance. The balance of convenience favored the applicant, as removing the pipeline would cause significant disruption and irreparable loss to their business. The court emphasized that the applicant's need to maintain the pipeline outweighed respondent No.3's unsubstantiated ownership claims.

5. Maintainability of the Appeal Under Order 43, Rule 1 of the Code of Civil Procedure:
The court referred to the judgment in Sandesh Ltd. & Anr. Vs. Transmedia Software Ltd., which established that an appeal against the order of notice is maintainable under Order 43, Rule 1 of the Code of Civil Procedure. The court admitted the appeal, recognizing the applicant's right to seek judicial intervention.

6. Grant of Ex Parte Ad-Interim Injunction:
Considering the principles enshrined in Order 39, Rule 1 of the Code of Civil Procedure, the court found that the applicant's case warranted the grant of an ex parte ad-interim injunction. The court noted that if the pipeline were removed, it would cause greater injustice to the applicant. The court extended the order of status quo until the application for temporary injunction (Exh:5) was decided by the trial court.

Conclusion:
The court allowed the application to the extent of continuing the status quo order until the trial court decided on the application Exh:5. The parties were directed to complete their pleadings by a specified date, and the trial court was instructed to hear and decide the application independently, without being influenced by the current order. The observations made were limited to the present application, and the parties were permitted to present all available contentions before the trial court. The application was disposed of with no order as to costs, and direct service was permitted.