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TMI Blog2011 (5) TMI 1151X X X X Extracts X X X X X X X X Extracts X X X X ..... passed by the Division Bench the Notice of Motion taken up by the original Plaintiff had been made absolute in terms of prayers (a), (b) and (c), and thereby granting full interim relief which was sought by Respondent No. 1 herein. 3. In view of the demise of Respondent No. 1, the heirs of Respondent No. 1 have come on record of the appeal. Their case is that the interim relief as was sought, though in the nature of mandatory relief, was necessary in the facts and circumstances of the case. As against that, the submission on behalf of the Appellants is that the learned Single Judge had exercised his discretion appropriately and there was no reason for the Division Bench to interfere therein. The Appellants also contend that the prayers in the Notice of Motion are the principal prayers in the plaint and, therefore, it amounts to granting a decree at the interlocutory stage which was not justified in the present case. 4. The question for determination, therefore, is as to whether, in the facts and circumstances of the case, the mandatory order as passed by the Division Bench was justified, or whether the learned Single Judge having exercised his discretion appropriately, the Divisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat were lying with the HSBC bank totaling to One Crore Forty Lakhs and invested in Birla Sun Life Mutual Funds. The Appellant No. 1 had suggested this investment to him which he had declined, and thereafter unilaterally this account was shifted. On Respondent No. 1's protest, the investments in mutual funds were redeemed and substantial amount came back into the account. However, an amount of about Rs. 6.9 lakhs was lost as it could not be redeemed. In view of this development, he lost confidence in his brother and therefore served a notice dated on 2.3.2009 on the Appellants, revoking all the three Powers of Attorney. He called upon both the Appellants to desist from acting on the basis of these Powers of Attorney. He called upon them further to return the title deeds of the property, and render the accounts, and informed them that he had appointed one Yogesh Jadhav as the Project Manager and asked the Appellants to acquaint him with various contractors as also the position of work and balance of payment to be made. He lastly called upon the Appellants not to operate the account with Indian Bank as well as with the HSBC bank and return all the bank papers. 8. Appellant No. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nest claim on the property knowing fully well what had come to his share, viz. only ten percent (10%) of the property. He further pointed out that he had a larger counter-claim running into crores of rupees against Respondent No. 1, and that the entire property was in his exclusive possession for several years and there was no question of appointing anyone else as Project Manager. With respect to the bank account, he specifically pointed out that the bank account was being operated by him in his own independent right and the Respondent could not order him to refrain from operating the said account. 10. This led to the first Respondent to file the above mentioned suit against the Appellants. The Indian Bank, Hong Kong Shanghai Banking Corporation (HSBC Bank) and the State Bank of India were joined as Defendants No. 3 to 5 respectively. The three principal prayers in the suit were as follows: (a) Defendant Nos. 1 and 2 and their servants and agents be restrained by a permanent order and injunction of this Hon'ble Court from in any manner directly or indirectly acting or holding themselves out as Attorneys or Agents of the Plaintiff or dealing with any of the properties or busines ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny Cheques on or giving any instructions relating to or withdrawing any amounts from Account No. 20006421901 in the joint names of the Plaintiff and Defendant No. 1 with Defendant No. 5. (b) that pending the hearing and final disposal of the Suit, Defendant Nos. 1 and 2 and their servants and agents be directed by an interim order and injunction of this Hon'ble Court to deliver to the Plaintiff documents listed in Exhibit U to the Plaint and all other documents, correspondence and records belonging to the Plaintiff in the possession or power of Defendant No. 1 or Defendant No. 2 (c) that pending admission, hearing and final disposal of the Suit; (i) Defendant No. 3 and their servants and agents be restrained by an order and injunction of this Hon'ble Court from honoring any Cheques signed by Defendant No. 1 on or acting on any instructions given by Defendant No. 1 relating to Account No. 417627508 with Respondent No. 3 permitting any withdrawal of amounts by Defendant No. 1 from Account No. 417627508 with Defendant No. 3; (ii) Defendant No. 4 and their servants and agents be restrained by an order and injunction of this Hon'ble Court from honoring any Cheques signed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticularly when their sisters were supporting the Appellants with respect to family settlement which was allegedly arrived at when their father was alive. Granting of the interim order as prayed would have meant that the Appellants will be required to withdraw themselves from the concerned property. They will be restrained from entering into that property or holding out as the attorneys of Respondent No. 1 concerning that property. The Order by the learned Single Judge also records that with respect to the stage of the construction it was the counsel for the Appellants who placed the facts before the Court on instructions that the construction was nearly complete, payments to various agencies had been made by the first Appellant and at this belated stage if any interim order was passed it would not only be inconvenient to Appellants, but also to the purchasers of the flats and other third parties. 13. The grant of interim order would mean discontinuance of the scenario on the spot as it existed at that point of time. Hence, the prayers restraining the Appellants as attorneys or agents of first Respondent or restraining them from entering into the property could not be granted. As fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urchasers shall be signed by the Plaintiff and/or his daughters Laxmi and Sangita. However, this entire arrangement is without prejudice to the rights and contentions of both sides. The Plaintiff should furnish details of all the offers received and agreements which are entered into by him to the first Defendant so as to enable first Defendant to verify the particulars thereof. It is only after the offers are intimated in writing that the Plaintiff can conclude the transactions and not otherwise. 14. Being aggrieved by that limited order and seeking full interim relief, Respondent No. 1 filed an appeal to the Division Bench. The learned Judges of the Division Bench were impressed by the fact that the conveyance of the property was in the name of the Respondent and the flats were being sold in his name. Though the learned Judges noted that the explanation given by the Respondent No. 1 about opening of the joint account in the year 1993 was not satisfactory, they emphasized the fact that in the Powers of Attorney there was no reference to the family arrangement. They also posed the question that if the Appellants had developed the property why there was no reference to those dealings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asis that anything beyond the limited protection given at that stage would deny the opportunity to the Appellants to establish their case at the trial when it is not in dispute that Appellant No. 1 contributed ninety percent of the purchase money to the property and he took steps all throughout to develop the property. Undoubtedly, there are many inconsistencies in the stories that are put up by both the parties, and an interlocutory stage is not the one where one can reach at a definite conclusion one way or the other, particularly where the fact situation is as above and it would result into non-suiting one party. 17. As stated above, the question comes up as to whether the order passed by the Division Bench was necessary. Mr. Nariman, learned Counsel appearing for the Respondents, relied upon the judgment of this Court in Dorab Cawasji Warden v. Coomi Warden (1990) 2 SCC 117 in support. 18. As far as this judgment is concerned, it must be noted that it was a suit by one joint owner of an undivided family house to restrain the other joint owners/their heirs from transferring their share of the house and from parting with possession to a third party/purchaser and restraining the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udicial discretion. 19. In Metro Marins and Anr. v. Bonus Watch Co. (P) Ltd. and Ors. (2004) 7 SCC 478, the Respondent had filed a suit for possession contending that the license of the Appellant to the suit property had expired. The Respondent had prayed for a judgment on admission and alternatively an injunction directing the Appellant to immediately hand over vacant and peaceful possession of the suit property. The learned Single Judge of the Calcutta High Court who heard the interlocutory application, came to the conclusion that he did not find any reason to pass such an order in view of the fact that the suit was still pending and granting of such relief would tantamount to a decree before trial. The Appellate Bench, however, re-examined the facts and observed that the litigation to be a luxury litigation directed the Receiver to put the Respondent/Plaintiff in possession. In the appeal to this Court, the learned Counsel for the Appellants pointed out that the Appellants were very much in possession of the premises and the order passed by the Division Bench was contrary to the law laid down in Dorab Cawasji Warden (Supra). The counsel for the Respondents, on the other hand, de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed with respect to the family arrangement, which plea is supported by their sisters. 22. The test to be applied to assess the correctness of the order of the learned Single Judge would be whether the order is so arbitrary, capricious or perverse that it should be interfered at an interlocutory stage in an intra-Court appeal. In Wander Ltd. and Anr. v. Antox India P. Ltd. reported in 1990 SCC 727, a bench of Three Judges of this Court has laid down the law in this respect which has been consistently followed. In that matter, Appellant No. 1 being the registered proprietor of a Trade Mark had entered into an agreement with the Respondent permitting it to manufacture certain pharmaceutical product. On the basis of that arrangement, the Respondent applied for the requisite license from the authorities concerned. In view the dispute between the parties, the Appellant called upon the Respondent to stop manufacturing the particular product, and entered into an arrangement with another company. The Respondent filed a suit and sought a temporary injunction to restrain the Appellant and its new nominee-company from manufacturing the products concerned. This was on the basis of continued user ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o defer to this principle. It is to be noted that the proposition laid down has been consistently followed thereafter. 23. For the reasons stated above, in our view, the present case, is not one where mandatory interim injunction, as sought by the Respondents was justified. The learned Single Judge had passed a reasoned order, and, in no way, it could be said that he had exercised the discretion in an arbitrary, capricious or perverse manner, or had ignored the settled principles of law regarding grant or refusal of interlocutory injunction. There was no reason for the Appellate Bench to interfere and set aside that order. 24. This appeal is, therefore, allowed. The order passed by the Division Bench is set aside and that of the learned Single Judge is restored. We make it clear that we have not made any observations on the merits of the rival claims of the Appellants as well as the Respondents. We have confined ourselves only with respect to the question as to what should be the interlocutory arrangement in the facts and circumstances of the present case. In our view, the order passed by the learned Single Judge was well reasoned and justified in that context. In the facts of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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