An order of injunction passed shall not be discharged after giving a party an opportunity of being heard: High Court of Delhi

 IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on: 21st February 2022 FAO 51 2021& CM APPL. 4514 2021 BANK OF BARODA Appellant UNION BANK OF INDIA & ORS. Respondents Advocates who appeared in this case: For the Appellant: Mr. Arun Aggarwal Advocate For the Respondents: Mr. Saurabh with Mr. Rajiv R. Mishra Advocate for R 1 Mr. Bhaarat Malhotra Advocate for R 2 CORAM: HON’BLE MR. JUSTICE SANJEEV SACHDEVA SANJEEV SACHDEVA J The hearing was conducted through video conferencing. impugns order dated 10.12.2020 whereby application filed by the appellant as also by respondent no. 1 under Order 39 Rule 4 CPC have been dismissed. Both applications had sought vacation of order dated 25.02.2013 which had been confirmed by the order dated 13.08.2015. FAO 51 2021 Notice has been served on respondent No. 3 however none appears for respondent no. 3 is proceeded ex parte. Subject suit was filed by the respondent no. 2 seeking declaration cancellation of documents and permanent injunction. By order dated 25.02.2013 while issuing summons in the suit on the application under Order 39 Rules 1 and 2 CPC the Court had noticed that an order has been placed upon respondent no. 3 for supply of industrial oil and payment was to be paid through letter of credit after 180 days. Respondent no. 3 had approached the bank for encashment of letter of credit. The case of the plaintiff was that goods had not been supplied. As per the plaintiff the documents attached by respondent no. 3 with the letter of credit i.e. invoices and lorry receipts were Keeping in view the said submissions on behalf of the plaintiff forged. FAO 51 2021 the Court had granted interim injunction on encashment of letter of credit. Said injunction continued from time to time till it was confirmed by order dated 13.08.2015 and the injunction is to continue during the pendency of the suit. 10. Thereafter subject application seeking modification of order dated 25.02.2013 was filed on 14.09.2015 which application has been dismissed by the impugned order. 11. The impugned order notes that an application under Order 39 Rule 4 CPC is permissible only if in the application seeking temporary injunction or in the affidavit supporting such application a party has made false and misleading statement in respect to a material particular and injunction was granted without notice to the opposite party. 12. Second proviso to Order 39 Rule 4 CPC lays down that where an order of injunction has been passed after giving to a party an opportunity of being heard said order shall not be discharged varied or set aside except where such discharge variations or setting aside has been necessitated by a change in the circumstances or unless the Court is satisfied that the order has caused undue hardship to that party. FAO 51 2021 13. As noticed by the trial court there is no modification or variations sought of order dated 13.08.2015 which had confirmed the initial ad interim order dated 25.02.2013. 14. Further it is noticed that nothing had been brought on record to show that the appellant had suffered any hardship or that there was any change in the circumstances. 15. Trial court has also noticed that no appeal has been filed by the appellant either against the order of 25.02.2013 or against the order dated 13.08.2015. 16. Since the application filed by the appellant does not satisfy the requirements of the second proviso to Order 39 Rule 4 CPC the orders dated 25.02.2013 and 13.08.2015 do not warrant any modification or vacation under Order 39 Rule 4 CPC. In my view the trial court has committed no error in rejecting the application filed by the appellant under Order 39 Rule 4 CPC. Accordingly there is no merit in the appeal. The appeal is dismissed. It is further noticed that the subject suit is a suit challenging the invocation of a letter of credit and has been pending since the year 2013. It is directed that trial court shall expedite the proceedings and endeavour to conclude the same by 31.12.2022. It is further clarified that nothing stated herein shall amount to FAO 51 2021 party. an expression of opinion on the merits of the contentions of either 20. Copy of the order be uploaded on the High Court website and be also forwarded to learned counsels through email by the Court FEBRUARY 21 2022 SANJEEV SACHDEVA J FAO 51 2021 

Summary: An application under Order 39 Rule 4 CPC is permissible only if in the application seeking temporary injunction or in the affidavit supporting such application, a party has made false and misleading statement in respect to a material particular and injunction was granted without notice to the opposite party. Where an order of injunction has been passed after giving to a party an opportunity of being heard, said order shall not be discharged, varied or set aside except where such discharge, variations or setting aside has been necessitated by a change in the circumstances or unless the Court is satisfied that the order has caused undue hardship to that party and the same was upheld by High Court of Delhi through the learned bench led by Justice Sanjeev Sachdeva in the case of BANK OF BARODA vs. UNION BANK OF INDIA &amp; ORS. [CM APPL. 4514/2021] on 21.02.2022. The facts of the case are that the plaintiff claimed that no goods were supplied by the respondent. As per the plaintiff, the documents attached by respondent no. 3 with the letter of credit, i.e., invoices and lorry receipts were forged. Respondent no. 3 had approached the bank for encashment of letter of credit. Notice was served on respondent 3, however, no one appeared. Therefore, he was proceeded ex-parte. Appellant impugns order whereby the application filed by the appellant as also by respondent under Order 39 Rule 4 CPC have been dismissed. The plaintiff’s counsel submitted that since plaintiff has already made the payment of the letter of credit to respondent No. 3, respondent no. 3 may not be interested in defending the appeal. Further, nothing had been brought on record to show that he had suffered any hardship or that there was any change in the circumstances. Keeping in view the facts and circumstances of the case, the court held that the application filed does not satisfy the requirements of the second proviso to Order 39 Rule 4 CPC, therefore, the said orders do not warrant any modification or vacation under Order 39 Rule 4 CPC. Accordingly, the appeal was dismissed, since the Court did not find any merit in the appeal. The Court observed that “an application under Order 39 Rule 4 CPC is permissible only if in the application seeking temporary injunction or in the affidavit supporting such application, a party has made false and misleading statement in respect to a material particular and injunction was granted without notice to the opposite party. Where an order of injunction has been passed after giving to a party an opportunity of being heard, said order shall not be discharged, varied or set aside except where such discharge, variations or setting aside has been necessitated by a change in the circumstances or unless the Court is satisfied that the order has caused undue hardship to that party.” Click here to read the Judgment