9911796707
TMI Blog2018 (4) TMI 1626X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 - HIGH COURT OF GAUHATI]. Injunction is a discretionary relief pending adjudication of the suit. Discretion has to be exercised on sound principles keeping in mind golden principles governing grant of injunction. Appeal against exercise of discretion is an appeal on principle. Appellate Court would normally not interfere with exercise of discretion if conclusion reached by Trial Court is reasonably possible based on materials on record. [Vide: Sharmila Vijay Shetty v. Hemendra Prasad Barooah and others - 2012 (11) TMI 1225 - GUJARAT HIGH COURT]. The Court's interference is also necessary to protect plaintiff from species of irreparable injury before he can establish his title before Trial Court. In case suit property is allowed to be wasted, damaged or alienated the trial itself shall become infructuous and purposeless. Nature of controversy, nature of suit and particular rights asserted by parties, which give rise to be triable Issue, require to be determined/adjudicated upon, on the basis of evidence in main suit. Once status of parties is in issue in a regularly instituted suit, due course of law had to be applied for determination of nature of parties' possession over p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sdiction to entertain any suit or proceedings vis- -vis any matter that is to be determined by the Tribunal or Appellate Tribunal owing to mandate of law enshrined in Sections 241 and 430 of Indian Companies Act, 2013. Learned counsel for appellant's next limb of argument is that court below has failed to appreciate that it has no jurisdiction to pass impugned order, given the fact that a Suit for grant of Permanent and Mandatory Injunction qua same property was already pending adjudication before learned 1st Additional Munsiff, Srinagar, in which an order of status quo passed, was in force. His subsequent contention is that appellant had specifically brought to the notice of court below that suit properties were partitioned amongst parties during life time and under guidance of their father - Late Bakshi Abdul Hamid in the year 1990 and therefore, Suit was not maintainable and that while respondents 1 2 had been assigned their shares by predecessor-in-interest, i.e. father of parties, and their share is in the two separate buildings situated on higher level in the same premises and constructed in the year 1990; appellant was assigned his share in ancestral house constructed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n by mentioning in his objections to the application for interim relief. He also argues that assuming through not admitting that there is any substance in any of contentions of appellant, proper way of law must have been to file a written statement before court below as well as to argue contentions raised after the same are treated as preliminary issues. The order impugned has not been passed in ex parte, but after hearing both sides and applying judicial mind on the basis of guidelines for grant of injunction as per catena of authorities cited therein. Despite status quo orders, appellant in gross violation thereof, had been carrying on the construction, for which contempt has already been framed against him on the basis of the report of the Commissioner as well as the Police report. To buttress his submissions, learned counsel for respondent no.1 has relied on Dhulabhai etc. v. State of MP, 1969 AIR (SC) 78; Sahara Fabrics v. Kailash and anr., 2006 (2) (Bom) (R) 377; Greeneline Transit System Pvt. Ltd v. Secy. Cum Commissioner Transport and another 2012 Supreme (Del) 2159; and N. Ramji v. Ashwath Narayan Ramji others, 2017 Supreme (Mad) 1208. 6. The J K Code of Civil Procedu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it and he omitted the same without obtaining permission of the Court and, therefore, second suit for declaration and injunction is barred under Order II Rule 2 CPC. 8. To counter aforementioned arguments advanced by learned counsel for appellant, the learned counsel for respondent no.1 has submitted that the provisions of Order II Rule 2 CPC have no applicability to the facts and circumstances of the present case. Order II Rule 2 CPC, according to him, is based on principle that no one should be vexed twice for the one and same cause. The rule does not preclude a second suit based on a distinct and separate cause of action. According to the learned counsel for the plaintiff / respondent no.1, and rightly so, provisions of Order II Rule 2 CPC do not attract or apply to present case, inasmuch as neither of two suits arise out of same cause of action, for, a cause of action for instituting a Suit for Permanent and Mandatory Injunction is distinct from cause of action for a Suit for Declaration. It is the right and its infringement and not ground or origin of right and its infringement that constitute cause of action. Earlier suit has not yet been decided on merits by the court conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action. Sub-rule (3) of Rule 2 provides that a person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs, but if he omits, except with the leave of the Court, to sue for all such reliefs he shall not afterwards sue for any relief so omitted. 10. In the present case, a glimpse of record, in the form of annexures, placed with the memo of appeal, divulges that earlier suit (Annexure P-4 to memo of appeal) filed by plaintiff/respondent no.1, being File no.249/F, is Suit for Permanent and Mandatory Injunction. That suit was filed on 30th November 2017. At the time of filing of that suit, the case set up by respondent no.1 was that plaintiff and defendants were joint owners in possession of land measuring about 09 kanals along with several residential houses situated at Sonawar Bagh, Srinagar and that on death of their parents, the property devolved upon them, which was yet to be partitioned and even residential houses existing on premises were jointly insured in the name of the parties. The cause of action that has been shown in the earlier suit to have arisen is that defendant no.1 dumped some building material on spot and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause of action. As has been observed by the Privy Council in Mohammad Khalil Khan v. Mahbub Ali Mian, AIR 1949 PC 78, that it is the right and its infringement and not the ground or origin of right and its infringement, which constitute cause of action. There is a distinction between cause of action and right of action. 13. What does the expression 'cause of action' as used in Order II of the Code of Civil Procedure connote? An all embracing definition of the term 'cause of action' is not to be easily found. It may mean one thing for one purpose and something different for another depending; for example, on the question whether the principle of res judicata applies or whether an amendment of pleading is permissible or whether a pleading is good upon demurrer and so on. 'Cause of action' has sometimes been defined as being the fact or facts which establish or give rise to a right of action, the existence of which affords a party a right to judicial relief. The facts, which comprise cause of action, are those which, if traversed, the plaintiff is obliged to prove in order to obtain a judgment, or those facts which defendant would have right to traverse, or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action is a right to presently enforce a cause of action a remedial right affording redress, for the infringement of a legal right belonging' to some definite person; a cause of action is the operative facts which give rise to such right of action. Right of action does not arise until performance of all conditions precedent to the action and may be taken away by running of the statute of limitations, through an estoppel, or by other circumstances which do not affect cause of action. There may be several rights of action and one cause of action and rights may accrue at different times from the same cause. 17. Cause of action should also be distinguished from 'remedy' which is the means or method, by which cause of action or corresponding obligation is effectuated and by which a wrong is redressed and relief obtained. The one precedes and gives rise to the other, but they are separate and distinct from each other and are governed by different rules and principles. The cause of action is the obligation, from which springs the action , defined as the right to enforce an obligation. A cause of action arises when that which ought to have been done is not done or th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent relief be presented in a single suit. 20. In order that a plea of a bar under Order II Rule 2 (3) CPC should succeed, defendant, who raises plea, must make out (l) that second suit was in respect of the same cause of action as that on which previous suit was based; (2) that in respect of that cause of action plaintiff was entitled to more than one relief and (3) that being thus entitled to more than one relief plaintiff, without leave obtained from the Court, omitted to sue for the relief for which the second suit had been filed. Unless there is identity between cause of action on which earlier suit was filed and that on which claim in later suit is based there would be no scope for application of the bar. 21. A Bench of this Court in a case titled Deepak Jain v. Jain Nagar Welfare Society reported in 2008(1) JKJ HC 305, while discussing the impact of the provisions of Order II Rule 1 has held that the provisions would have no application to the cases where plaintiff bases his suit on separate and distinct cause of action and chooses to relinquish one or the other of them. In such cases, it is always open to plaintiff to file fresh suit on the basis of a distinct caus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suit against the defendant and yet not claimed by the plaintiff. 28. Therefore, we have to examine the question as to whether the plaintiff was entitled to claim a relief of specific performance of agreement in the previous suit on the basis of cause of action pleaded by the plaintiff in the previous suit against the respondents/ defendants in relation to suit property. 29. In other words, the question that arises for consideration is whether Sucha Singh (original plaintiff) could claim the relief of specific performance of agreement against the respondents/ defendants in addition to his claim of permanent injunction in the previously instituted suit? 30. Our answer to the aforementioned question is in favour of the plaintiffs (appellants) and against the defendants (respondents). In other words, our answer to the aforementioned question is that the plaintiff could not claim the relief of specific performance of agreement against the defendants along with the relief of permanent injunction in the previous suit for the following reasons. 31. First, the cause of action to claim a relief of permanent injunction and the cause of action to claim a relief of specific performa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d opinion, this question does not now survive for consideration in the light of what we have held above. In any event, keeping in view the law laid down by this Court in Gurinderpal vs. Jagmittar Singh (2004) 11 SCC 219, the question is answered against the respondents. 40. In somewhat similar facts, the question arose before this Court in Gurinderpal's case (supra), namely, if the order granting permission to withdraw the suit under Order 23 Rule 1(3) of the Code does not specifically mention the fact of granting liberty to the plaintiff to file a fresh suit, whether filing of fresh suit would be hit by Order 2 Rule 2 of the Code? 41. This Court (three Judge Bench), speaking through Justice R.C. Lahoti (as His Lordship then was), held that filing of the second suit is not hit by Order 2 Rule 2 of the Code and is maintainable for being tried on merits...... xxxxx xxxx 43. In our considered opinion, reading of the statement of the original plaintiff (Sucha Singh) coupled with the permission granted by the Court to withdraw the suit satisfies the requirement of Order 23 Rule 1 (3) of the Code. It certainly enabled the plaintiff to file a fresh suit, namely, the civil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e-person company is included in this Act that will be a private company and with only 98 provisions of the Act notified. A total of another 184 sections came into force from 1st April 2014. 25. Section 3 of Act of 2013 provides that that a company may be formed for any lawful purpose by: seven or more persons, where company to be formed is to be a public company; two or more persons, where company to be formed is to be a private company; or one person, where company to be formed is to be One Person Company that is to say, a private company, by subscribing their names or his name to a memorandum and complying with the requirements of this Act in respect of registration. However, memorandum of One Person Company shall indicate name of other person, with his prior written consent in prescribed form, who shall, in the event of subscriber's death or his incapacity to contract become member of company and written consent of such person shall also be filed with Registrar at the time of incorporation of One Person Company along with its memorandum and articles. Provided further that such other person may withdraw his consent in such manner as may be prescribed: Provided also that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thin a period of sixty days of such refusal or where no intimation has been received from company, within ninety days of delivery of instrument of transfer or intimation of transmission, appeal to the Tribunal. Subsection (5) of Section 58 provides that the Tribunal, while dealing with an appeal made under subsection (3) or subsection (4) of Section 58 of Act of 2013, may, after hearing parties, either dismiss the appeal, or by order either direct that transfer or transmission shall be registered by company and the company shall comply with such order within a period of ten days of receipt of order; or direct rectification of register and also direct company to pay damages, if any, sustained by any party aggrieved. Subsection (6) of Section 58 says that if a person contravenes order of Tribunal, he shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to three years and with fine which shall not be less than one lakh rupees but which may extend to five lakh rupees. 27. Section 59 of Act of 2013 provides that if name of any person is, without sufficient cause, entered in register of members of a company, or after having been e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2013 stipulates that a limited company having a share capital may, if so authorised by its articles, alter its memorandum in its general meeting to: increase its authorised share capital by such amount as it thinks expedient; consolidate and divide all or any of its share capital into shares of a larger amount than its existing shares, provided that no consolidation and division which results in changes in the voting percentage of shareholders shall take effect unless it is approved by the Tribunal on an application made in the prescribed manner; (c) convert all or any of its fully paid-up shares into stock, and reconvert that stock into fully paid-up shares of any denomination; (d) sub-divide its shares, or any of them, into shares of smaller amount than is fixed by the memorandum, so, however, that in the sub-division the proportion between the amount paid and the amount, if any, unpaid on each reduced share shall be the same as it was in the case of the share from which the reduced share is derived; (e) cancel shares which, at the date of the passing of the resolution in that behalf, have not been taken or agreed to be taken by any person, and diminish the amount of its share ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duction is in conformity with the accounting standards specified in section 133 or any other provision of this Act and a certificate to that effect by the company's auditor has been filed with the Tribunal. Subsection (4) of Section 66 of Act of 2013 says that order of confirmation of the reduction of share capital by the Tribunal under subsection (3) of Section 66 of Act of 2013 shall be published by the company in such manner as the Tribunal may direct. Subsection (5) of Section 66 provides that The company shall deliver a certified copy of the order of the Tribunal under sub-section (3) and of a minute approved by the Tribunal showing: (a) the amount of share capital; (b) the number of shares into which it is to be divided; (c) the amount of each share; and (d) the amount, if any, at the date of registration deemed to be paid-up on each share, to the Registrar within thirty days of the receipt of the copy of the order, who shall register the same and issue a certificate to that effect. Subsection (6) of Section 66 provides that nothing in Section 66 shall apply to buy-back of its own securities by a company under section 68 of Act of 2013. Subsection (7) of Section 66 of Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin a period of three months from such commencement or from the date on which such payments, are due, with the Registrar a statement of all the deposits accepted by the company and sums remaining unpaid on such amount with the interest payable thereon along with the arrangements made for such repayment, notwithstanding anything contained in any other law for the time being in force or under the terms and conditions subject to which the deposit was accepted or any scheme framed under any law; and (b) repay within one year from such commencement or from the date on which such payments are due, whichever is earlier. Subsection (2) of Section 74 of Act of 2013 provides that the Tribunal may on an application made by the company, after considering the financial condition of the company, the amount of deposit or part thereof and the interest payable thereon and such other matters, allow further time as considered reasonable to the company to repay the deposit. Subsection (3) of Section 74 envisages that if a company fails to repay the deposit or part thereof or any interest thereon within the time specified in Subsection (1) of Section 74 or such further time as may be allowed by the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... than once in a financial year, provided also that the detailed reasons for revision of such financial statement or report shall also be disclosed in the Board's report in the relevant financial year in which such revision is being made. Subsection (2) of Section 131 says that where copies of previous financial statement or report have been sent out to members or delivered to the Registrar or laid before the company in general meeting, the revisions must be confined to: (a) the correction in respect of which the previous financial statement or report do not comply with the provisions of Section 129 or Section 134 of Act of 2013 and (b) the making of any necessary consequential alternation. Subsection (3) of Section 131 of Act of 2013 says that the Central Government may make rules as to the application of the provisions of this Act in relation to revised financial statement or a revised director's report and such rules may, in particular: (a) make different provisions according to which the previous financial statement or report are replaced or are supplemented by a document indicating the corrections to be made; (b) make provisions with respect to the functions of the compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r any other law for the time being in force, by the Tribunal or the Appellate Tribunal. 35. Qua applicability of provisions of Companies Act, 2013, it is well settled law that a serious question of fraud and collusion cannot be decided by the Tribunal in a summary proceeding. Given the relief solicited for by respondent no.1 in the Suit for Declaration, Partition and Injunction, the Tribunal has no power to decide the title of the shares in summary proceedings. Section 58 of the Companies Act, provides that rectification of register of members has to be decided by Tribunal and as per Section 430, the Civil Court has no jurisdiction. At the same time, it is also a trite law that Tribunal has a power only to decide the issue of rectification of register of members and has no power to decide the issue of title. It is apt to mention here that as per Section 111A of the Companies Act, 1956, the Company Law Board was empowered to decide the issue of title also. The word 'title' has not been included in Section 58 of the Companies Act, 2013. Even while considering Section 111A, it was held by the Supreme Court that a seriously disputed question of title cannot be decided by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relegated to the Civil Court. If the question arises for the title of a person, in whose favour the shares are to be transferred, adjudication power may not be available to the Tribunal to exercise power under Section 58 of the Act of 2013. [See: Jai Mahal Hotels Private Limited v. Devraj Singh and others, 2016 (1) SCC 423; Union of India v. R. Gandhi, the President, Madras Bar Association, 2010 (6) SCR 857; and K. Ravinder Reddy v. Alliance Business School and others, (2016) 198 CompCas 481 (Kar)]. Insofar as judgements cited and relied upon by learned counsel for petitioner are concerned, the same are distinct and distinguish from the facts and circumstances of the present case. 38. Notwithstanding what has been discoursed and observed herein above, it would not be appropriate in the present case, at this stage, to say, observe or opine that there is a real question of dispute between parties because such issue can very well be discussed in verbose, adjudicated upon and determined before and by court below and for that matter court below is to/can frame/settle issue(s) as to whether it has jurisdiction or not to decide disputed question(s) of title etcetera, as raised by part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i v. Krishnaben Girdharilal Lalvani, AIR 2002 Guj 398; Sukkha Singh v. Mahal Singh, AIR 2003 Raj 21. 40. Order XXXIX Rule 1 of the Code of Civil Procedure relates to cases in which temporary injunction may be granted. It envisages that where in any suit it is proved by affidavit or otherwise that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or that the defendant threatens or intends to remove or dispose of his property with a view to defrauding his creditors, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as the court thinks fit, until disposal of suit or until further orders, the court may pass temporary injunction. It also provides where in any suit it is proved by affidavit or otherwise that defendant threatens to dispossess plaintiff or otherwise causes injury to pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er is against established or settled principles of law. If two views are possible and a view, which is reasonable and logical, has been adopted by Trial Court, the other view, howsoever appealing, would not be allowed to be substituted in place of the Trial Court's views, which are, otherwise, reasonable and logical. [See: Radhabari Tea Company (P) Ltd. v. Mridul Kumar Bhattacharjee and others, 2010(1) GLT 189]. 43. Injunction is a discretionary relief pending adjudication of the suit. Discretion has to be exercised on sound principles keeping in mind golden principles governing grant of injunction. Appeal against exercise of discretion is an appeal on principle. Appellate Court would normally not interfere with exercise of discretion if conclusion reached by Trial Court is reasonably possible based on materials on record. [Vide: Sharmila Vijay Shetty v. Hemendra Prasad Barooah and others, (2016) 3 GLR 50]. 44. The Court's interference is also necessary to protect plaintiff from species of irreparable injury before he can establish his title before Trial Court. A bare look at Order XXXIX Rule 1 CPC makes it clear that purpose and object of provision is to preserve sub ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
