INDUSTRIAL INVESTMENT BANK OF INDIA LTD.

MARSHAL'S POWER & TELECOM (I) LTD. AND ANR.

NOVEMBER 8, 2006

[H.K. SEMA AND P.K. BALASUBRAMANYAN, JJ.]

Code of Civil Procedure, I 908-0rder XXXIX Rules I and 2-Jnterim Injunction-Contractual transaction-Money advanced to second party and C third party secured the loan by hypothecation and charge-Notice by lender to the securing party seeking repayment of the amount-Suit by securing party against the lender for mandatory injunction and application for interim injunction-Claim of lender before Debt Recovery Tribunal-Interim injunction granted and execution of any order by Tribunal restrained-Held: In the facts and circumstances of the case, the court below could not exercise its D discretion to grant any interim injunction-Injunction against enforcement of orders of Tribunal also not correct-Such injunctions against the Tribunal having jurisdiction to pass such orders cannot normally be granted unless it is a case of fraud or the existence of some such vitiating factor is established or prima facie made out.

E Appellant-defendant No. 1 issued a notice to respondent No. 1 - plaintiff and defendant No. 2, seeking repayment of the amounts advanced by it to defendant No. 2, the repayment of which was secured by hypothecation and charge created by the plaintiff. Pursuant thereto respondent No. 1 - plaintiff filed a suit against defendant Nos. 1 and 2 for mandatory injunction restraining F the defendants from interfering with certain capacitor banks systems allegedly supplied by the plaintiff and installed at various substations of Transmission Corporation of Andhra Pradesh. Plaintiff also filed application for interim injunction.

Trial Court granted interim injunction. In the meanwhile appellant filed G its claim for recovery of the amounts due, before Debts Recovery Tribunal. It

also filed application for vaating the interim order and the same was vacated by Single Judge of High Court. Plaintiffs appeal thereagainst was allowed by Division Bench of High Court on the ground that since the suit was filed earlier to the claim before Debt Recovery Tribunal, the court was competent

H 698

INDUSTRIAL INVESTMENT BANK OF INDIA LTD.>. MARSHAL'S POWER 1'. lRECOM (I) LTD 699

to entertain the suit and granted interim injunction. It permitted• the A proceedings before the Tribunal, but restrained the execution of any order that might be passed by the Tribunal. Hence the present appeal.

Allowing the appeal, the Court

HELD:· I. On the facts and in the circumstances of the case, the court B is primafacie satisfied that this is not a fit case for exercise of discretion by the court to grant any interim injunction as sought for by the plaintiff. Division Bench has not properly adverted to or considered the question whether in the nature of the pleadings in the case and the nature of the relief claimed in the suit, an order of injunction as the one granted by it should be granted. The Division Bench did not ask itself the question whether it was open to it on he C facts and in the circumstances of the case, to issue an order of injunction restraining one of the contracting parties from enforcing as against the oter contracting party, the obligations arising out of that contract. The Division Bench also did not ask itself the question whether the plaintiff had made out a prima facie case for the grant of what it called an interim mandatory D injunction - though it appears to this court to be a case of prohibitory injunction ,.

- and whether the balance of convenience is in favour of the grant of an intetjm order of injunction. [702-B-FI

2. Division Bench has clearly acted illegally in purporting to pass an interim order of injunction restraining the enforcement of any order that may E be passed by the Debts Recovery Tribunal. The Debts Recovery Tribunal is. a

I special forum created by a special enactment for the purpose of enforcement of special types of claims arising in favour of financial institutions. Thus, competent proceedings are instituted before such a Tribunal by a financial institution seeking to enforce its claimed rights. Whatever defences the plaintiff herein may have against the claims of the first defendant before the F Debts Recovery Trihunal, have to be put forward by the plaintiff before the Debts Recovery Trii>unal. The mere fact that the plaintiff chose to rush to the

I Civil Court on receipt of a notice from the first defendant in an attempt to thwart the enforcement of the obligations it has allegedly incurred, does not justify the grant of an interim order of injunction restraining the enforcement G of the rights arising out of an alleged hypothecation and a charge created by the plaintiff in favour of the first defendant. That apart, to grant an injunctio11 restraining the enforcement of orders passed by the Tribunal having jurisdiction to pass such orders cannot normally be granted unless it is a

case of fraud or the existence of some such vitiating factor is established or H

A primafacie made out Even then, the order of injunction as now granted could be granted only in exceptional cases. (702-F-H; 703-A-C]

3. It is open to the plaintiff to put forward all its contentions before the Debts Recovery Tribunal and if it is thought appropriate, to get the suit filed by it transferred to the Debts Recovery Tribunal to be tried as a cross suit or B counter claim against the claim of the first defendant before the Debts Recovery Tribunal (703-E-F)

State Bank of India v. Mis Ranjan Chemicals Ltd and Anr., (2006) to SCALE 150, referred to.

C CIVIL Al>PELLA TE JURISDICTION : Civil Appeal No. 4728 of2006.

From the final Judgment and Order dated 23.11.2004 of the High Court of Judicature at Madras in O.S.A. No. 186 of 2004.

K.K. Mani for the Appellant.

L. Nageshwar Rao, T.G. Narayanan Nair, Nandakumar K.P. Venugopal, and E. Venukumar, K.J. John & Co. for the Respondents.

The Judgment of the Court was delivered by:

E P.K. BALASUBRAMANY AN, J. Leave granted.

Heard both sides.

1. Defendant No. I in C.S. No. 644 of 2003 filed on the Original Side of the High Court of Madras is the appellant.' The appeal challenges the grant F of an interim injunction by the Division Bench of the High Court in favour of the plaintiff, respondent No. I herein, pending the suit. The suit was filed by the plaintiff for a mandatory injunction restraining defendants 1 and 2 jointly or severally from taking possession of or interfering with the use of or exercising any right of lien, charge or from issuing notice in any form or from creating any kind of disturbance or from attaching otherwise or raising G a claim in respect of certain capacitor banks systems allegedly supplied by the plaintiff and installed at various substations of Transmission Corporation for Andhra Pradesh {for short, 'APTRANSCO') and for award of the costs of the suit. In that suit, the plaintiff filed O.A. No. 806 of 2003 under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure seeking an interim H injunction along the same lines to enure during the suit. The suit was filed

INDUSTRIAL INVESTMENT BANK OF INDIA LTD. v. MARSHAL'S POWER&: TELECOM (I) LTD. (PK BALASUBRAMANYAN. Jd 70}

when defendant No. I issued a notice to the plaintiff and defendant No. 2 in A the suit seeking repayment of the amounts advanced by the first defertdant to the second defendant, the repayment of which was secured by hypothecation and charge created by the plaintiff.

2. According to the plaint, no valid charge or hypothecation was created in favour of the first defendant and the first defendant was not entitled to B claim any amount as against the plaintiff and was not entitled to enforce the charge or hypothecation as against the plaintiff.

3. The trial court granted an ad interim ex parte order of injunction after entertaining the suit. Meanwhile, the first defendant filed its claim for recovery C of the amounts allegedly due to it from defendants I and 2 before the Debts Recovery Tribunal. The first defendant al:; o appeared in the suit filed by the plaintiff and in addition to filing an objection to the interim application for injunction also filed Application No. 4726 of 2003 praying for vacating the interim order of injunction granted by the court. The first defendant pleaded that substantial amounts were due to it; that certain assets had been D hypothecated to it and a charge created for securing the loan by the plaintiff and that the charge and the hypothecation were legally enforceable and thete was no ground for granting an interim order of injunction as sought for. It was also submitted that the plaintiff had no cause of action for filing such a suit and it was for the plaintiff to put forward its case or its defence before the Debts Recovery Tribunal.

4. The learned single judge after hearing both sides vacated the interim order of injunction e::irlier granted. Thus, he allowed the application filed by the first defendant tor vacating the injunction and dismissed the application filed by the plaintiff for interim injunction. The learned single judge essentially F took the view that since the first defendant had initiated a proper proceeding for enforcement of its rights before a Tribunal exclusively competent to deal with such a claim, it was not for the Civil Court to intervene with an interim order of injunction as sought for by the plaintiff. The plaintiff filed an appeal before the Division Bench. The Division Bench of the High Court allowed the. appeal taking the view that the suit in the Civil Court was maintainable and G since the suit was filed earlier, the court was competent to entertain the suit and grant an interim order of injunction. Without properly considering whether on the facts and in the circumstances of the case and the nature of the suit filed by the plaintiff an interim order of injunction was warranted or justified, it granted an order of injunction presumably as prayed for by the plaintiff but H

A clarifying that the deed of hypothecation executed on the subject matter in question shall be in force and the procedings before the Debts Recovery Tribunal may go on, but restraining the execution of any order that may be passed by the Debts Recovery Tribunal. Feeling aggrieved, the first defendant has filed this appeal.

5. We think that the Division Bench has not properly adverted to or considered the question whether in the nature of the pleadings in the case and the nature of the relief claimed in the suit, an order of injunction as the one granted by it should be granted. Primafacie, it appears that the plaintiff had executed a hypothecation and created a charge to secure the loan C advanced by the first defendant to the second defendant. The loan was advanced to enable the second defendant to fulfil the terms of a contract it had entered into with APTRANSCO. The second defendant had subcontracted a part of the work to the plaintiff. The first defendant had advanced monies to the second defendant for the work and the plaintiff had prim a facie secured the loan by hypothecation and a charge. An order has been claimed D against the plaintiff before the Debts Recovery Tribunal in enforcement of its rights by the first defendant. The Division Bench did not ask itself the question whether it was open to it on the facts and in the circumstances of the case, to issue an order of injunction restraining one of the contracting parties from enforcing as against the other contracting party, the obligations E arising out of that contract. The Division Bench also did not ask itself the question whether the plaintiff had made out a prima facie case for the grant of what it called an interim mandatory injunction - though it appears to us to be a case of prohibitory injunction - and whether the balance of convenience is in favour of the grant of an interim order of injunction. On the facts and in the circumstances of the case, we are prima facie satisfied that F this is not a fit case for exercise of discretion by the court to grant any interim injunction as sought for by the plaintiff.

6. We also find that the Division Bench has clearly acted illegally in purporting to pass an interim order of injunction restraining the enforcement of any order that may be passed by the Debts Recovery Tribunal. The Debts G Recovery Tribunal is a special forum created by a special enactment for the purpose of enforcement of special types of claims arising in favour of financial institutions. Thus, competent proceedings are instituted before such a Tribunal by a financial institution seeking to enforce its claimed rights. Whatever defences the plaintiff herein may have against the claims of the first defendant H before the Debts Recovery Tribunal, have to be put forward by the plaintiff

INDIJSTRIAL INVESTMENT BANK OF INDIA LTD. e. MARSHAL'S POWER /l: TELECOM (I) LTD. IP.K. BALASUBRAMANY AN. J.J 703

before the Debts Recovery Tribunal. The mere fact that the plaintiff chose to A rush to the Civil Court on receipt of a notice from the first defendant in an attempt to thwart the enforcement of the obligations it has allegedly incurred, does not justify the grant of an interim order of injunction restraining th\! enforcement of the rights arising out of an alleged hypothecation and a charge created by the plaintiff in favour of the first defendant. That apart, to B grant an injunction restraining the enforcement of orders passed by the _Tribunal having jurisdiction to pass such orders cannot normally be granted

nless it is a case of fraud or the existence of some such vitiating factor is established or prima facie made out. Even then, the order of injunction as now granted could be granted only in exceptional cases.

7. We had recently occasion to consider the scope of the raising of a counter claim before the Debts Recovery Tribunal in State Bank of India v.

Mis Ranjan Chemicals Ltd & Anr., (2006) I 0 SCALE 150. It appears to us that . the claims sought to be put forward by the plaintiff in the present suit is something that is really in the nature of a defence to the action initiated by

the first defendant before the Debts Recovery Tribunal or which could be put D forward by way of a counter claim, if necessary. This aspect also had to be borne in mind before deciding whether a case for passing of an interim order of injunction has been made out or not. This aspect has also been ignored by the Division Bench.

8. In the result, we allow the appeal and setting aside the order of the E Division Bench, restore the order of the learned single judge dismissing the application for interim injunction. We mak:! it clear that it is open to the plaintiff to putforward all its contentions before the Debts Recovery Tribunal and if it is thought appropriate, to get the suit filed by it transferred to the Debts Recovery Tribunal to be tried as a cross suit or counter claim against p the claim of the first defendant before the Debts Recovery Tribunal. The first defendant - appellant, would be entitled to its costs in this Court.

KKT.

Appeal allowed.