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U.D. Patel and Co. Vs. C.M. Milligam and Clarke Ltd. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberAppeal From Order No. 162 of 1955 with Civil Appln. No. 2634 of 1955
Judge
Reported inAIR1956Bom598
ActsCode of Civil Procedure (CPC), 1908 - Sections 115 and 151 - Order 39, Rule 2 - Order 41, Rule 23 - Order 43; Arbitration (Protocol and Convention) Act, 1937 - Sections 5, 7, 7(1) and 7(3); Indian Arbitration Act, 1940
AppellantU.D. Patel and Co.
RespondentC.M. Milligam and Clarke Ltd.
Appellant AdvocateB.J. Kapadia, Adv., i/b., Hasan Baxi and Co., Attorneys
Respondent AdvocateJ.S. Lam, Adv., i/b., Eastly Lam and Co., Attorneys
Excerpt:
.....(protocol and convention) act, 1937 and indian arbitration act, 1940 - appeal against dismissal of notice of motion - two proceedings are pending - plaintiff filed suit for permanent injunction from obtaining decree in foreign award and petition to pass decree in terms of award by respondent - notice of motion moved for restraining further progress in petition pending decision in suit - order passed in notice of motion by trial court not under provisions of order 39 but under section 151 - not appealable under order 43 - high court converted appeal to revision application and directed that two proceedings to be treated as companion proceedings. - - therefore, i am not satisfied that the observation on which mr. kapadia's argument because i am satisfied that, even if the word..........decree in terms of the foreign award.alter this suit was filed by the appellants, they took out a notice of motion and they urged that pending the final decision of this suit the respondents should be restrained making any further progress with their petition. this notice of motion was dismissed by the learned trial judge and the appellants have come to this court in the present appeal against the said dismissal of the notice of motion.2. mr. lam for the respondents has raised a preliminary objection. he contends that the appeal from order preferred by the plaintiffs against the dismissal of their notice of motion is incompetent. it is clear that, if an order is passed under order 39 granting or refusing to grant an injunction, the said order is appealable under order 43 of the code.on.....
Judgment:

Gajendragadkar, J.

1. This is an appeal by the plain-tiffs against the order passed by the learned Judge of the City Civil Court refusing to grant an injunction as prayed by them. It appears that between the plaintiffs and the defendants two proceedings are at present pending. The respondents have filed a petition in the City Civil Court on 23-6-1955.

This petition has been filed under Section 5, Arbitration (Protocol and Convention) Act 6 of 1937. The respondents' case is that a foreign award has been validly made between them and the appellants and they want the City Civil Court to pass a decree In terms of this award. While the petition was pending in the trial Court, the appellants filed their suit No. 2554 of 1955.

In this suit fine appellants in substance contend that a decree in terms of the foreign award should not be passed and they have made several allegations in support of this prayer. It is a suit filed to obtain a permanent injunction restraining the respondents Irani taking any further steps in the matter of obtaining a decree in terms of the foreign award.

Alter this suit was filed by the appellants, they took out a notice of motion and they urged that pending the final decision of this suit the respondents should be restrained making any further progress with their petition. This notice of motion was dismissed by the learned trial Judge and the appellants have come to this court in the present appeal against the said dismissal of the notice of motion.

2. Mr. Lam for the respondents has raised a preliminary objection. He contends that the appeal from order preferred by the plaintiffs against the dismissal of their notice of motion is incompetent. It is clear that, if an order is passed under Order 39 granting or refusing to grant an injunction, the said order is appealable under Order 43 of the Code.

On the other hand, if a prayer for injunction is made, riot under the relevant provisions of Order 39, but under the inherent jurisdiction of the Court under Section 151 and an order is passed either granting an injunction or refusing to grant it, the said order would not be appealable, and according to Mr. Lam, considering the material averments made in the plaint and in the affidavits in support of the notice of motion it would be clear that the notice of motion was taken out under the inherent jurisdiction of the Court and not under Order 39, Rule 2.

On the other hand, Mr. Kapadia for the appellants has relied upon the provisions of Order 39, Rule 2, and he argues that the words in Rule 2 of Order 39 are wide enough to include a claim for injunction such as has been made in the plaint and the claim for temporary injunction which has been made in the notice of motion. Rule 2 of Order 39 deals with suits for restraining the defendants from committing a breach of contract or other injury of any kind, and it provides that in such suits an order of interim injunction may be passed in an appropriate case.

The words 'other injury of any kind', says Mr. Kapadia, must be very liberally construed and the jurisdiction of the Court to grant relief by way of interim injunction, where a party asking for such injunction is able to show other injury of any kind should not be denied. In support of this argument. Mr. Kapadia has invited my attention to a decision of the Calcutta High Court/ in 'Umapati Choudhari v. Subodh Chandra Choudhari' : AIR1953Cal377 .

In this case, the learned Judges of the Calcutta High Court were dealing with a claim for injunction made by persons who were not present at the time when a decree for partition was passed and the question which arose for decision was whether a claim for injunction in such circumstances could be maintained under Order 39, Rule 2.

It is true, as Mr. Kapadia points out, that Das Gupta, J. in dealing with the scope and effect of the provisions of Order 39, Rule 2, has observed that the word 'injury' should be given its widest denotation. But it is clear from the judgment that the learned Judges were disposed to place their order more upon the inherent jurisdiction of the Court under Section 151 of the Code and the principal point of law which the judgment deals with is whether the jurisdiction of the Court to grant injunction is canfined to the provisions of Order 39 or can in an appropriate case be exercised even under Section 151.

Das Gupta J. came to the conclusion that the provisions of Order 39 should not be regarded as exhaustive and that in proper cases it would be open to the Court to exercise its inherent jurisdiction and grant relief to a party by way of issuing an order of injunction. A contrary view taken by the Madras High Court did not appear to the learned Judges to be reasonable. Therefore, I am not satisfied that the observation on which Mr. Kapadia relies really amounts to such a decision on which reliance can be placed without any qualification.

3. I do not, however, propose to express a definite opinion on this part of Mr. Kapadia's argument because I am satisfied that, even if the word 'injury' used in Order 39, Rule 2, is interpreted very liberally, that would not help the appellants because, alter all, in considering the nature of the order passed by the learned trial Judge, one must inevitably consider the nature of the allegations made before him in support of the prayer for injunction, and on looking at the material averments in the plaint and in the affidavit in support of the notice of motion 'I am satisfied that reliance was placed on the inherent jurisdiction of the Court under Section 151 in support of the prayer for injunction, permanent and temporary, and that whoever drafted the plaint and the affidavit in support of the notice of motion did not purport to place his ease on Order 39, Rule 2 at all.

That being the nature of the case which was made before the learned Judge, I feel no difficulty in holding that the order dismissing the notice of motion must be taken as an order passed, not under the provisions of Order 39, but under Section 151 of the Code, and if that be the true position, the appeal preferred by the plaintiffs is incompetent.

4. Mr. Kapadia has, however, requested us to convert his appeal into a re visional application. Normally this Court would be very reluctant to interfere with the order passed by the trial Court in the exercise of its inherent jurisdiction under Section 151. But, in the present case, Mr. Kapadia contends that the dismissal of the notice of motion is based on findings made by the trial Court which raise points of jurisdiction, and so I am dealing with this matter as a revisional application.

5. Shortly stated, the learned trial Judge appears to have taken the view that all the material allegations made by the plaintiffs in their suit and the issues arising therefrom can and ought to be tried on the petition itself. In coming to this conclusion the learned trial Judge has considered the provisions of Section 7 of Act 6 of 1937.

'Section 7 lays down the conditions for the enforcement of foreign awards, and Clauses (a) to (e) of Sub-section (1) of Section 7 indicate the points which can and must be tried by the Court before which a petition filing the foreign award has been made. Sub-section (2) of Section 7 provides for a separate suit in respect of contentions indicated in that sub-section.

The dispute between the parties, therefore, lies within a very narrow compass. If all the contentions raised by the plaintiffs in their suit can be said to fall legitimately within the purview of Section 7 Sub-section (1), then it may not be open to the plaintiffs to invoke the provisions of Section 7 Sub-section (3) to justify the institution of a separate suit.

On the other hand, if all or any of the contentions raised by the plaintiffs in their plaint do not fall under Section 7 Sub-section (1) then it would be open to them to argue that Section 7 Sub-section (3) authorises a separate suit to be filed. Besides, Mr. Kapadia seems to contend that, even in respect of some matters covered by Section 7 Sub-section (1), the remedy by a separate suit cannot be said to be excluded altogether, and in support of this argument he wanted to refer to the corresponding provisions in the Indian Arbitration Act prior to the amendment of 1940.

On this part of the controversy again I do not propose to express any opinion. It seems to me that, having regard to the contentions raised by the plaintiffs, the best order to make would be that the learned Judge should try the petition preferred by the respondents and the suit filed by the appellants together as companion matters. Mr. Kapadia's real apprehension is that, if the petition succeeds and a decree follows on the petition, he will have no right of appeal.

One way of looking at this position is that the Legislature has intended that the decision in summary proceedings permitted under the provisions of the Arbitration (Protocol and Convention) Act should end with the making of a decree and should not be protracted by the provision of an appeal. On the other hand, if Mr. Kapadia has filed a suit In which he raises his own contentions against the petition, its competence and the validity of a claim for a decree in terms of the foreign award, and this suit is dismissed, he has undoubtedly a right of appeal against the dismissal of his suit.

If the two proceedings are tried in the trial Court as companion proceedings, Mr. Kapadia would really suffer no prejudice in case his suit is dismissed and the petition is allowed and a decree is ordered to be drawn up; it would be open to Mr. Kapadia's clients to prefer an appeal against the dismissal of the suit and bring the award decree to this Court under its revisional jurisdiction under Section 115.

If the two proceedings are tried together as companion proceedings, the Court entertaining the appeal against the final decision in Mr. Kapadia's suit and the decree drawn on the petition would naturally be disposed to treat both the appeal and the revisional application as companion proceedings. Whereas the adoption of this course would cause no prejudice to Mr. Kapadia, if the petition is tried and then the suit is taken up, both the proceedings being treated as companion suits.

Mr. Lam's contention that the petition should be tried first would also have been met. Id is hardly necessary to add that, even though I am directing the learned Judge to try the two proceedings as companion proceedings, it does not mean that Mr, Lam will not be able to take any point against the competence of the suit which he feels like taking.

The two proceedings will be treated as independent proceedings in a sense; but if they are treated as companion proceedings and disposed of one after the other the interests of both the parties will be met. Indeed, after delivering this Judgment both, the learned Counsel for the parties agreed that this would be a reasonable course to adopt in the interests of both the parties.

6. I would accordingly direct the learned trial Judge to try the proceedings as companion proceedings. He may decide whether it would not be expedient to ask the parties to lead their evidence in the petition and treat it as evidence in the suit by agreement.

7. The petitioners to pay the costs of this re-visional application of the Opponents.

8. The interim injunction issued in the application for injunction is vacated. No order as to costs.

9. Order accordingly.


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