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TMI Blog1999 (4) TMI 632X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent No. 2 to purchase the five wind turbine generators which were inturn hired out by the respondent No. 1 to appellant and the respondent No. 2 by five separate lease agreements. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was ₹ 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of ₹ 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourth instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's further case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of ₹ 58,28,590/- on 3rd January 1997 but did not pay the balance. 3. After filing the suit for recovering the amount of ₹ 5,00.52,810/-an interlocutory application was moved (referred to as the first ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to take symbolic possession of a sum of ₹ 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was ₹ 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of ₹ 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999. 7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the Arbitration and Conciliation Act, 1996 before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arch 1999. The Receiver shall in addition to taking symbolic possession of the spare parts of the aircrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic possession of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in terms of the order dated dated 8th March 1998. 11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993 (3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994 (1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be justified on the basis of the materials which were before the learned trial court. 14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code. Clause 37 of the Letters Patent (1865) provides: 37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pport of an exparte order and the power is an unconditional one. 19. Order 39 Rule 3 of the Code of Civil Procedure on the other-hand says : Rule 3. Before granting injunction, court to direct notice to opposite party. The court shall in cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party. Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant- (a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with- (I) a copy of the affidavit filed in support of the application; (II) a copy of the plaint; and (III) copies of documents on which the applicant relies, and (b) to file, on the day on which such injunction is granted or on the day immediately follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like. . 23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amendment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid. 24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Municipal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said: The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d . A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in violation of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Electric Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparte injunction, his order was not sustainable . Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 rule 3 . 28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR. 29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare it as such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record the reasons for proceeding exparte. 32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (India) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regard to the failure of the court to direct the service of the order and for the same reasons. 33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs. M.K. Basu, J. 34. I agree. Let a xerox cop ..... X X X X Extracts X X X X X X X X Extracts X X X X
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