Admittedly, the dispute/claim of the Bank is pending.
Section 95 so read and referred along with other sections and the
provisions just cannot be overlooked while considering the case for
grant of interlocutory orders including injunction pending the main
dispute. There is no other provision available under the MCS Act for
passing and/or grant of interlocutory order by a court pending the
dispute if case is made out that the opponent/defendants to defeat
and/or would obstruct the execution and about to dispose of the
whole or any part of his property or about to remove the whole or
any part of his property from the jurisdiction of the Court, the
Registrar or the concerned office. The power is also provided to
insist for adequate security apart from conditional attachment of the
property. Section 95(4) further empowers the Cooperative Court, the
Registrar or the authorised person, as the case may be, may, in order
to prevent the ends of justice being defeated make such interlocutory
orders pending the decision in a dispute referred which they appear to
be just and convenient.
This specific provision, in my view, though, in a given case,
need to read and refer along with the principle of Order 39, Rule 1 of
CPC, yet the power of Cooperative Court to grant such injunction
and/or interlocutory order just cannot be restricted as submitted by
the learned counsel appearing for the Petitioners based upon the
Division Bench judgment in Swan Mills Limited (supra).
It is settled that the Court needs to consider the facts and
circumstances of each case. The facts are dissimilar
so also the
provisions so read and involved in the present writ petition. The
statute provides specific provisions and permit the party to get such
interlocutory orders pending the award and/or dispute. There is no
remedy available for such protective reliefs. The invocation of
present provisions by the Bank and the reasoned decision given by the
Authorities cannot be stated to be illegal, contrary to any provision
and/or even to the judgment so referred above by the learned counsel
appearing for the Petitioner [Swan Mills Ltd. (supra) ]. Both the
authorities are within the power and jurisdiction to pass such
interlocutory orders even of injunction as passed in the present case to
avoid further complication and to defeat and/or delay and/or obstruct
the execution of any award by recording clear finding that prima facie
case is made out and the balance of convenience and equity lies in
favour of the Bank and so also the aspect of an irreparable injury. The
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE CIVIL JURISDICTION
WRIT PETTION NO. 8650 OF 2013
Shri Shankar Govind Mali and ors. .... Petitioners
vs
Kolhapur District Central Cooperative Bank
Limited and ors.
CORAM: ANOOP V. MOHTA, J.
DATE : February 04, 2015
Citation;2015(2) MHLJ 441
Heard finally by consent of parties.
2 The Petitioners have challenged the order passed by the
Court below whereby restrained the Petitioners (opponent Nos, 3, 4
and 7) in the following terms :
“1) The application dated 21.04.2010 at Exh. 32 is
partly allowed.
2) The opponent Nos. 3, 4, 6, 7 and 9 are hereby
temporarily restrained from transferring, selling,
alienating, creating any encumbrance and from
disposing of their respective shares in the properties
mentioned in schedule “A” and “B” of the application till
the final decision of the dispute.
3) Costs shall be the cost in main cause.”
3 The Appellate Authority by reasoned order also dismissed
the Appeal filed by the Petitioners that resulted into maintaining the
order so referred above.
4 Admittedly, the dispute filed by Respondent No.1Bank
is
still pending for recovery of the amount of Rs.1,77,13,112/.
However, as averred and considered by the court below, and further,
as sufficient material placed on record and as sufficient case is made
out and the balance of convenience lies in favour of the disputantBank
and further the Bank would suffer irreparable loss and,
therefore, passed the order of restraintment as referred above.
5 The learned counsel appearing on behalf of the Petitioners
have relied upon a Division Bench judgment of this Court in Swan
Mills Limited v. Dhirajlal @ Dhirubhai Babaria and ors., 2012 (4) Mh.
L. J. 937 [ Anoop V. Mohta, J. part
of the Division Bench ] which
deals with the aspect of Order 38, Rule 5 read with Order 39, Rule 1 of Code of Civil Procedure (CPC) and in the facts of that case, it is
observed that “once finding is recorded that Plaintiffs have not made
out a case for attachment before judgment, temporary injunction
cannot be granted against defendants.”. Therefore, submitted that no
question of granting the order of injunction as the facts and
circumstances are also similar.
6 The learned counsel for Respondent No.1Bank,
however,
submitted that the Division Bench judgment needs to be seen and
considered on the basis of the respective facts so mentioned and
referred. In that case, the issue was based upon a foreign judgment
which was taken to be a decree of this Court for the purposes of
enforcement and execution and, therefore, proceedings were initiated.
The learned Single Judge granted prayer (a) and thereby restrained
the concerned authorities from selling and/or alienating and/or
encumbering and/or creating third party rights of any nature
whatsoever in respect of the immovable and movable
assets/properties of the defendants wherever, be located in India and
overseas. The Division Bench judgment, therefore, in the background
also observed that there is no case or finding given by the learned
Single Judge about the balance of convenience, prima facie case
and/or irreparable injury and loss which are relevant and necessary
before passing the injunction order. In the present matter, I have to
consider the facts of the present case and the law so involved.
General observations, if any, made that cannot be read in isolation to
accept the submission made by the learned counsel for the Petitioners
that no injunction order can be passed, if no case is made out for
attachment before judgment specifically when Section 95 of the
Maharashtra Cooperative Societies Act (MCS Act) which is a special
code, deal with and provides with the provisions connected with
and/or related to the attachment before award and/or interlocutory
order. Section 95(4) of the Act is reproduced below :
“95 Attachment before award or order and
interlocutory orders. (
1) (
2) (
3) (
4) The Cooperative
Court, the Registrar or the
authorised person, as the case may be, may in order to
prevent the ends of justice being defeated make such
interlocutory orders pending the decisiion in a dispute
referred to in subsection
(1) as may appear to be just
and convenient.”
7 Admittedly, the dispute/claim of the Bank is pending.
Section 95 so read and referred along with other sections and the
provisions just cannot be overlooked while considering the case for
grant of interlocutory orders including injunction pending the main
dispute. There is no other provision available under the MCS Act for
passing and/or grant of interlocutory order by a court pending the
dispute if case is made out that the opponent/defendants to defeat
and/or would obstruct the execution and about to dispose of the
whole or any part of his property or about to remove the whole or
any part of his property from the jurisdiction of the Court, the
Registrar or the concerned office. The power is also provided to
insist for adequate security apart from conditional attachment of the
property. Section 95(4) further empowers the Cooperative Court, the
Registrar or the authorised person, as the case may be, may, in order
to prevent the ends of justice being defeated make such interlocutory
orders pending the decision in a dispute referred which they appear to
be just and convenient.
8 This specific provision, in my view, though, in a given case,
need to read and refer along with the principle of Order 39, Rule 1 of
CPC, yet the power of Cooperative Court to grant such injunction
and/or interlocutory order just cannot be restricted as submitted by
the learned counsel appearing for the Petitioners based upon the
Division Bench judgment in Swan Mills Limited (supra).
9 It is settled that the Court needs to consider the facts and
circumstances of each case. The facts are dissimilar
so also the
provisions so read and involved in the present writ petition. The
statute provides specific provisions and permit the party to get such
interlocutory orders pending the award and/or dispute. There is no
remedy available for such protective reliefs. The invocation of
present provisions by the Bank and the reasoned decision given by the
Authorities cannot be stated to be illegal, contrary to any provision
and/or even to the judgment so referred above by the learned counsel
appearing for the Petitioner [Swan Mills Ltd. (supra) ]. Both the
authorities are within the power and jurisdiction to pass such
interlocutory orders even of injunction as passed in the present case to
avoid further complication and to defeat and/or delay and/or obstruct
the execution of any award by recording clear finding that prima facie
case is made out and the balance of convenience and equity lies in
favour of the Bank and so also the aspect of an irreparable injury. The
orders so passed concurrently by both the authorities appears to be
just and convenient.
10 Therefore, taking overall view of the matter and as there is
no perversity on the merits of the case so recorded. No case is made
out to interfere with the impugned orders. The writ petition is
dismissed. No costs.
(ANOOP V. MOHTA, J.)
Print Page
Section 95 so read and referred along with other sections and the
provisions just cannot be overlooked while considering the case for
grant of interlocutory orders including injunction pending the main
dispute. There is no other provision available under the MCS Act for
passing and/or grant of interlocutory order by a court pending the
dispute if case is made out that the opponent/defendants to defeat
and/or would obstruct the execution and about to dispose of the
whole or any part of his property or about to remove the whole or
any part of his property from the jurisdiction of the Court, the
Registrar or the concerned office. The power is also provided to
insist for adequate security apart from conditional attachment of the
property. Section 95(4) further empowers the Cooperative Court, the
Registrar or the authorised person, as the case may be, may, in order
to prevent the ends of justice being defeated make such interlocutory
orders pending the decision in a dispute referred which they appear to
be just and convenient.
This specific provision, in my view, though, in a given case,
need to read and refer along with the principle of Order 39, Rule 1 of
CPC, yet the power of Cooperative Court to grant such injunction
and/or interlocutory order just cannot be restricted as submitted by
the learned counsel appearing for the Petitioners based upon the
Division Bench judgment in Swan Mills Limited (supra).
It is settled that the Court needs to consider the facts and
circumstances of each case. The facts are dissimilar
so also the
provisions so read and involved in the present writ petition. The
statute provides specific provisions and permit the party to get such
interlocutory orders pending the award and/or dispute. There is no
remedy available for such protective reliefs. The invocation of
present provisions by the Bank and the reasoned decision given by the
Authorities cannot be stated to be illegal, contrary to any provision
and/or even to the judgment so referred above by the learned counsel
appearing for the Petitioner [Swan Mills Ltd. (supra) ]. Both the
authorities are within the power and jurisdiction to pass such
interlocutory orders even of injunction as passed in the present case to
avoid further complication and to defeat and/or delay and/or obstruct
the execution of any award by recording clear finding that prima facie
case is made out and the balance of convenience and equity lies in
favour of the Bank and so also the aspect of an irreparable injury. The
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE CIVIL JURISDICTION
WRIT PETTION NO. 8650 OF 2013
Shri Shankar Govind Mali and ors. .... Petitioners
vs
Kolhapur District Central Cooperative Bank
Limited and ors.
CORAM: ANOOP V. MOHTA, J.
DATE : February 04, 2015
Citation;2015(2) MHLJ 441
Heard finally by consent of parties.
2 The Petitioners have challenged the order passed by the
Court below whereby restrained the Petitioners (opponent Nos, 3, 4
and 7) in the following terms :
“1) The application dated 21.04.2010 at Exh. 32 is
partly allowed.
2) The opponent Nos. 3, 4, 6, 7 and 9 are hereby
temporarily restrained from transferring, selling,
alienating, creating any encumbrance and from
disposing of their respective shares in the properties
mentioned in schedule “A” and “B” of the application till
the final decision of the dispute.
3) Costs shall be the cost in main cause.”
3 The Appellate Authority by reasoned order also dismissed
the Appeal filed by the Petitioners that resulted into maintaining the
order so referred above.
4 Admittedly, the dispute filed by Respondent No.1Bank
is
still pending for recovery of the amount of Rs.1,77,13,112/.
However, as averred and considered by the court below, and further,
as sufficient material placed on record and as sufficient case is made
out and the balance of convenience lies in favour of the disputantBank
and further the Bank would suffer irreparable loss and,
therefore, passed the order of restraintment as referred above.
5 The learned counsel appearing on behalf of the Petitioners
have relied upon a Division Bench judgment of this Court in Swan
Mills Limited v. Dhirajlal @ Dhirubhai Babaria and ors., 2012 (4) Mh.
L. J. 937 [ Anoop V. Mohta, J. part
of the Division Bench ] which
deals with the aspect of Order 38, Rule 5 read with Order 39, Rule 1 of Code of Civil Procedure (CPC) and in the facts of that case, it is
observed that “once finding is recorded that Plaintiffs have not made
out a case for attachment before judgment, temporary injunction
cannot be granted against defendants.”. Therefore, submitted that no
question of granting the order of injunction as the facts and
circumstances are also similar.
6 The learned counsel for Respondent No.1Bank,
however,
submitted that the Division Bench judgment needs to be seen and
considered on the basis of the respective facts so mentioned and
referred. In that case, the issue was based upon a foreign judgment
which was taken to be a decree of this Court for the purposes of
enforcement and execution and, therefore, proceedings were initiated.
The learned Single Judge granted prayer (a) and thereby restrained
the concerned authorities from selling and/or alienating and/or
encumbering and/or creating third party rights of any nature
whatsoever in respect of the immovable and movable
assets/properties of the defendants wherever, be located in India and
overseas. The Division Bench judgment, therefore, in the background
also observed that there is no case or finding given by the learned
Single Judge about the balance of convenience, prima facie case
and/or irreparable injury and loss which are relevant and necessary
before passing the injunction order. In the present matter, I have to
consider the facts of the present case and the law so involved.
General observations, if any, made that cannot be read in isolation to
accept the submission made by the learned counsel for the Petitioners
that no injunction order can be passed, if no case is made out for
attachment before judgment specifically when Section 95 of the
Maharashtra Cooperative Societies Act (MCS Act) which is a special
code, deal with and provides with the provisions connected with
and/or related to the attachment before award and/or interlocutory
order. Section 95(4) of the Act is reproduced below :
“95 Attachment before award or order and
interlocutory orders. (
1) (
2) (
3) (
4) The Cooperative
Court, the Registrar or the
authorised person, as the case may be, may in order to
prevent the ends of justice being defeated make such
interlocutory orders pending the decisiion in a dispute
referred to in subsection
(1) as may appear to be just
and convenient.”
7 Admittedly, the dispute/claim of the Bank is pending.
Section 95 so read and referred along with other sections and the
provisions just cannot be overlooked while considering the case for
grant of interlocutory orders including injunction pending the main
dispute. There is no other provision available under the MCS Act for
passing and/or grant of interlocutory order by a court pending the
dispute if case is made out that the opponent/defendants to defeat
and/or would obstruct the execution and about to dispose of the
whole or any part of his property or about to remove the whole or
any part of his property from the jurisdiction of the Court, the
Registrar or the concerned office. The power is also provided to
insist for adequate security apart from conditional attachment of the
property. Section 95(4) further empowers the Cooperative Court, the
Registrar or the authorised person, as the case may be, may, in order
to prevent the ends of justice being defeated make such interlocutory
orders pending the decision in a dispute referred which they appear to
be just and convenient.
8 This specific provision, in my view, though, in a given case,
need to read and refer along with the principle of Order 39, Rule 1 of
CPC, yet the power of Cooperative Court to grant such injunction
and/or interlocutory order just cannot be restricted as submitted by
the learned counsel appearing for the Petitioners based upon the
Division Bench judgment in Swan Mills Limited (supra).
9 It is settled that the Court needs to consider the facts and
circumstances of each case. The facts are dissimilar
so also the
provisions so read and involved in the present writ petition. The
statute provides specific provisions and permit the party to get such
interlocutory orders pending the award and/or dispute. There is no
remedy available for such protective reliefs. The invocation of
present provisions by the Bank and the reasoned decision given by the
Authorities cannot be stated to be illegal, contrary to any provision
and/or even to the judgment so referred above by the learned counsel
appearing for the Petitioner [Swan Mills Ltd. (supra) ]. Both the
authorities are within the power and jurisdiction to pass such
interlocutory orders even of injunction as passed in the present case to
avoid further complication and to defeat and/or delay and/or obstruct
the execution of any award by recording clear finding that prima facie
case is made out and the balance of convenience and equity lies in
favour of the Bank and so also the aspect of an irreparable injury. The
orders so passed concurrently by both the authorities appears to be
just and convenient.
10 Therefore, taking overall view of the matter and as there is
no perversity on the merits of the case so recorded. No case is made
out to interfere with the impugned orders. The writ petition is
dismissed. No costs.
(ANOOP V. MOHTA, J.)
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