HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE K.S. APPA RAO C.M.A. No.534 of 2011 Dated: 09-08-2011 Between: M.Balwanth Reddy and another …Appellants AND M/s.Neni Hi-Tec Club Pvt. Ltd., # 169, Lal Bungalow, Old Airport Road, Bowenpally, Secunderabad, rep. by its Managing Director cum Chairman, N.Shekar Reddy and others Respondents. This Court made the following: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE K.S. APPA RAO C.M.A. No.534 of 2011 JUDGMENT: (Per Hon’ble Sri Justice A.Gopal Reddy) This appeal under Order 43 Rule 1 C.P.C. is filed against the orders of III Additional Chief Judge, City Civil Court, Hyderabad in I.A.No.651 of 2011 in O.S.No.141 of 2011, dated 7.3.2011 granting ex parte injunction in favour of plaintiffs-respondents 1 and 2 herein. First respondent is a company and second respondent is its Managing Director-cum-Chairman. They instituted the above suit for declaration that the balance sheet filed by the defendants 1 and 3-first appellant and third respondent herein with the Registrar of Companies for the financial year 2007-2008 on 4.8.2008 in pursuance to their statutory disqualification under Section 299 of the Companies Act, 1956 as illegal and inoperative as against the plaintiff No.1 company and consequently to restrain the defendants from interfering with the day-to-day affairs of the plaintiff No.1 company styling themselves to be the Directors. Pending the suit, they filed the impugned I.A. seeking ex parte ad interim injunction restraining the defendants from interfering with the day-to-day affairs of the first plaintiff company with the very same allegations stated in the plaint and also mentioning the earlier proceedings in O.S.No.608 of 2008 instituted by defendants 1 and 2 against the first plaintiff company and their obtaining interim injunction by filing I.A.No.2202 of 2008 and institution of various other proceedings by the plaintiffs, which are not at all necessary for us to go into the validity of the said earlier orders in the present application. The learned III Additional Chief Judge passed the following order: “Heard the learned counsel for the petitioner. Perused the documents filed in support of the petition. There appears to be a prima facie case in favour of petitioners. If the injunction is not granted, the respondents may interfere with the day-to-day affairs of petitioner club and thereby the object of the suit will be defeated. Hence issue ad interim injunction restraining the respondents from interfering with the day-to-day affairs of petitioners until further orders. The petitioners shall comply with the provisions of Order 39 Rule 3(A) CPC by 8/3/2011 and issue urgent notice to the respondents by 21.03.2011.” The present appeal is filed mainly questioning the ex parte interim order being violative of mandatory provision in recording the reasons as contemplated under Order 39 Rule 3 C.P.C. Sri Vedula Venkataramana, learned senior counsel appearing for the appellants-defendants 1 and 2 contends that when the suit itself is filed for declaration and for consequential injunction restraining the defendants including the appellants herein, granting of ex parte injunction will amount to granting of main relief as sought for in the suit i.e. restraining the defendants from interfering with the day-to-day affairs of the first plaintiff company and therefore, the impugned order is liable to be set aside. To buttress the said submission, strong reliance is placed on the decision of a Division Bench of this Court in Kasuganti Anantarao and another v. Kasuganti Aruna and another[1] and also the decision of the Supreme Court in Shiv Kumar Chadha v. Municipal Corporation of Delhi and others[2]. Per contra, Sri S.Ravi, learned senior counsel appearing for the plaintiffs-respondents 1 and 2 herein contends that the trial Court satisfied recording the reason that there is a prima facie case in favour of the plaintiffs and also recorded a finding that if the injunction is not granted, the defendants may interfere with the day-to-day affairs of the plaintiffs and the object of the suit will be defeated and therefore, the said reasons amply satisfy the requirement under Order 39 Rule 3 C.P.C. It is contended that the appellants-defendants can approach the trial Court with vacate stay petition to vacate the impugned order, in which event the trial Court will have an opportunity to record the contentions of both the sides and pass appropriate orders, and therefore, at this stage, the injunction order cannot be interfered with by this Court. He also contends that the management of the first plaintiff company was not aware of filing of balance sheet which was explained in para 14 of the plaint and the same was made known in the litigation between the parties and hence, the present suit has been filed. In support of his submissions, the learned counsel placed reliance on the decision of the Apex Court in A.Venkatasubbiah Naidu v. S.Chellappan and others[3]. Order 39 Rule 3 C.P.C. which mandates recording of the reasons for grating ex parte injunction reads thus: "3. Before granting Injunction, Court to direct notice to opposite party.--The Court shall in all 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 opposite 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 party, or to 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 following that day, an affidavit stating that the copies aforesaid have been so delivered or sent." A bare reading of Rule 3 shows that the Court shall in all cases before granting an injunction, direct notice of the application for the same to be given to the opposite party. But one exception has been made to this rule. The exception is where it appears to the Court that the object of granting the injunction would be defeated by the delay, the Court may propose to grant an injunction without giving notice of the application to the opposite party and in such event the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay. The Supreme Court in the case of Shiv Kumar Chadha in para 35 categorically held that ‘whenever a court considers it necessary in the facts and circumstances of a particular case to pass an order of injunction without notice to other side, it must record the reasons for doing so and should take into consideration, while passing an order of injunction, all relevant factors, including as to how the object of granting injunction itself shall be defeated if an ex parte order is not passed. But any such ex parte order should be in force up to a particular date before which the plaintiff should be required to serve the notice on the defendant concerned’. Therefore recording of the reasons as to how the object of granting injunction would be defeated by the delay if the ex parte injunction is not passed implies the application of mind by the lower Court to the facts of the case and the relief claimed in the suit. In the impugned order the lower Court simply observed that ‘there appears to be a prima facie case in favour of the petitioners’. Mere appearance of prima facie case is not sufficient for grant of injunction or recording a finding that the respondents may interfere with the day-to-day affairs thereby the object of the suit will be defeated is not at all a ground for granting ex parte injunction in favour of the plaintiffs. This Court in Kasuganti Anantarao and another (1 supra) after considering the provision under Order 39 Rule 3 C.P.C. and the earlier judgment of this Court in A.Balaiah v. Aravindanagar Co-Op. Housing Society[4] held that the provisions of order 39 Rule 3 C.P.C. read in the light of the proviso to it makes two things distinct. Whenever interim injunction is granted without notice the following are to be fulfilled. (1) the object of granting the injunction would be defeated by delay; (2) the Court shall record the reasons that the object of granting the injunction would be defeated by delay. The above two ingredients are mandatory in nature and non-compliance thereof will vitiate and render the order null and void. I n A.Balaiah (4 supra) this Court observed that ‘the express words in Order 39 Rule 3 C.P.C. require the Court to record the reasons for the formation of its opinion that the object of granting the injunction would be defeated by delay. When the order does not disclose the reasons for reaching the conclusion which is the foundation for issuing an ex parte injunction, it is not for the appellate Court to search the record and find out if there are sufficient reasons to justify the granting of ex parte injunction. The reasons must be recorded in the order. That condition precedent for sustaining the order not having been satisfied, this Court set aside the injunction order and remitted the matter to the lower Court for fresh consideration and disposal. In the decision reported in A.Venkatasubbiah Naidu (3 supra) on which reliance is placed by Sri S.Ravi, learned senior counsel appearing for the respondents 1 and 2, the Apex Court held that against the ex parte order the party will have opportunity either to move the Court which granted ex parte injunction or prefer an appeal under Order 43 Rule 1 C.P.C. and in view of the said remedies available, a revision under Article 227 of Constitution of India cannot be entertained. Thus the said decision is misplaced to the facts of the case on hand. As observed supra, the lower Court failed to record any reason for coming to the conclusion that if the ex parte interim injunction is not granted, the object of the suit will be defeated. In the absence of the same, it is rather difficult to sustain the impugned order. The impugned order is accordingly set aside and the matter is remitted to the lower Court for fresh consideration. Our order should not be understood that we have expressed any opinion as to the advisability of granting or refusing temporary injunction. Since the appellants have already filed their counter in June, 2011, which is annexed to the appeal, the lower Court shall proceed with the matter and dispose of the I.A. in accordance with law within four weeks from the date of receipt of a copy of this order. The C.M.A. is accordingly allowed. No order as to costs. ________________ A. GOPAL REDDY, J. __________________ AUGUST 09, 2011 K.S. APPA RAO, J. Tsr. [1] 1985 (2) ALT 339 [2] (1993) 3 SCC 161 [3] (2000) 7 SCC 695 [4] 1980 (1) ALT 90