B&A Limited & Anr. vs Amrex Marketing Pvt. Ltd. & Ors.

Hiranmay Bhattacharyya, J.:-

This application under Article 227 of the Constitution of India is at the instance of the alleged contemnor nos. 2 and 14 and is directed against an order dated 04.08.2026 passed by the learned Single Judge, Senior Division, First Court at Alipore, District 24 Parganas (S) in Misc. case no. 200 of 2026 arising out of title suit no. 715 of 2026.

By the order impugned the opposite party nos. 1 to 17 in the said Misc. Case were directed to make personal appearance before the Court on 03.09.2026 and the opposite party nos. 3 to 17 therein were restrained from acting upon or implementing or giving any further effect to any of the resolutions passed at the AGM held that 30.07.2026 including the reappointment of the opposite party no. 15 which was to take effect from 12.08.2026 till 03.09.2026.

Facts giving rise to this application under Article 227 of the Constitution of India in a nut shell are as follows.

In connection with the said suit the opposite party no. 1 filed an application under Order 39 Rule 1 and 2 of the Code praying for an order of temporary injunction restraining the defendant no. 1 from relying upon and from giving any effect to the impugned Form C dated 14.11.2025 or any rights claimed therein. The opposite party no. 1 also sought for a temporary injunction restraining the defendant no. 2 /B & A company its Board of Directors, Company Secretary and Officers from giving any effect to the impugned Form C dated 14.11.2025 and for temporary injunction restraining the defendant no. 4/ Bank from acting upon any instruction of the defendant no. 1 in respect of the scheduled shares and from transferring, transposition, dealing or creating any incumbrances or other demat action in respect of 8,61,918 equity shares of the defendant no. 2 lying in the joint demat account and 3,16,200 equity shares of the defendant no. 2 lying in the sole demat account maintained with the defendant no. 4 /Bank.

The opposite party no.1 also sought for leave under Order 1 Rule 8 of the Code of Civil Procedure. The learned Trial Judge granted leave to the opposite party no. 1 under Order 1 Rule 8 of the Code of Civil Procedure to sue and prosecute the present suit in a representative capacity on behalf of all public shareholders of B & A Limited who are similarly interested in the subject matter of the suit.

The learned Trial Judge, by an order dated 19.05.2026, allowed the prayer for ad interim order of injunction.

Alleging that the opposite party nos. 2 to 18 and the petitioner no. 2 herein acted in breach of the ad interim order of injunction dated 19.05.2026, the opposite party no. 1 filed an application under Order 39 Rule 2A read with Section 151 of the Code of Civil Procedure which was registered as Misc. Case no. 200 of 2026.

In connection with the said Misc. Case, the opposite party no. 1 filed an application under Section 94(c) and (e) read with Section 151 of the Code of Civil Procedure praying for mandatory injunction and personal appearance of the opposite parties in the Misc. Case.

By the impugned order, the learned Civil Judge, (Senior Division) First Court at Alipore, District 24 Parganas (S) directed personal appearance of the opposite party nos. 1 to 17 before the Court on 03.09.2026 and also allowed the ad interim prayer thereby restraining the opposite parties from acting upon, implementing or giving any further effect to any of the resolutions passed at the AGM held on 30.07.2026 including the re-appointment of the opposite party no. 15 of the Misc. Case which was to take effect from 12.08.2026 till 03.09.2026.

Being aggrieved by the aforesaid order, the defendant no. 2/ company and the opposite party no. 14 of the Misc. Case approached this Court.

Mr. Banerjee learned Senior Advocate for the petitioner contended that the persons against whom no order of injunction was passed in the suit could not have been impleaded as parties in the Misc. Case under Order 39 Rule 2A of the Code of Civil Procedure. He submitted that the learned Judge ought not to have passed an order directing personal appearance of the opposite parties in the Misc. Case by way of an ad interim order. He contended that the instant suit is barred under the provisions of Section 430 of the Company’s Act, 2013 and, therefore, no ad interim order could have been passed in a Misc. Case under Order 39 Rule 2A of the Code of Civil Procedure. He further contended that there is no scope to pass an ad interim order in a Misc. Case under Order 39 Rule 2A of the Code of Civil Procedure. Mr. Banerjee contended that the notice under Order 39 Rule 2A of the Code of Civil Procedure was issued only on 02.08.2026 and the Misc. Case under Order 39 Rule 2A was filed on 04.08.2026 and an ad interim order was passed on 04.08.2026. He further submitted that before the order dated 04.08.2026 was passed, a revised report of the scrutiniser with the revised voting results have already been submitted before the BSE which are available in the public domain and within the knowledge of the opposite party no. 1. Mr. Banerjee concluded by submitting that corrective measures have already been taken.

Mr. Chatterjee learned Senior Advocate appearing for the opposite party no. 2 also submitted that the suit itself is not maintainable in view of the statutory bar under Section 430 of the Company’s Act, 2013. He submitted that since the suit is not maintainable, the order dated 19.05.2016 and subsequent orders passed in the suit are nullity in the eye of law. He, therefore, submitted that the impugned order passed by the learned Judge directing personal appearance of the opposite parties in a Misc. Case before the Court on 03.09.2026 is without jurisdiction.

Mr. Srivastava learned Senior Counsel representing the opposite party no. 1 seriously disputed the contention of Mr. Banerjee. By referring to the expression “the person guilty of such disobedience or breach” used in Rule 2A of Order 39 of the Code of Civil Procedure, Mr. Srivastava would contend that the said expression would bring within its fold not only those who are parties to the main proceedings but even those who are not parties to the suit but have notice or knowledge of the said order. In support of such contention he placed reliance upon a decision of the Hon’ble Delhi High Court in the case of Krishna Gupta vs. Sh. Narendra Nath and another reported at 2017 SCC Online Del 10990. Mr. Srivastava further contended that in case of disobedience of an injunction granted under Rule 1 or Rule 2 of Order 39 or breach of any of the terms on which the injunction was granted, the Court has the power to order the person guilty of such disobedience or beach to be detained in civil prison. He submitted that the ad interim order directing personal appearance of the opposite parties is in aid of such final relief. In support of his contention that a direction for personal appearance of the persons who have acted in breach of the order of injunction can be passed by way of an ad interim order, he placed reliance upon a judgment dated 22.07.2019 of the Hon’ble Delhi High Court in FAO(OS) 129 with FAO(OS) 88/2019 in the case of Chuckles Kohli and ors. vs. Ravinder Singh.

Mr. Srivastava contended that the scope of interference under Article 227 of the Constitution of India is very limited and in support of such contention he placed reliance upon a decision of the Hon’ble Supreme Court in the case of Nandi Infrastructure Corridor Enterprises Ltd. And another vs. B. Gurappa Naidu and others reported at (2026) SCC Online SC 745. Mr. Srivastava contended that the order directing personal appearance of the persons who acted in breach of an order of injunction falls within the scope of the power of the Court while dealing with an application under Order 39 Rule 2A of the Code of Civil Procedure and such an order should not be interfered with by this Court in exercise of powers under Article 227 of the Constitution of India. Mr. Srivastava further contended that the steps that may have been taken by the petitioner to purge the contempt cannot be considered at this stage.

Mr. Srivastava further placed reliance on the decision of the Hon’ble Supreme Court in Delhi Development Authority vs. Skipper Construction Co. (P) Limited and another reported at (1996) 4 SCC 622. In support of his contention that the object of Order 39 Rule 2A will be fulfilled if a mandatory direction is passed to set the wrong right and to undo the wrong in the interest of justice.

Heard the learned advocates for the parties and perused the materials placed.

Though several points were raised by the learned Senior Counsels for the respective parties in course of argument but the immediate relief sought for by the petitioner is by way of an order of stay of the portion of the impugned order directing personal appearance of the opposite party nos. 1 to 17 in the Misc. Case.

Record reveals that the learned Trial Judge passed an ad interim order of injunction on 19.05.2026 which was to remain in force till 19.06.2026. The operative portion of the order dated 19.05.2026 is extracted hereinafter-

The ad interim order dated 19.05.2026 was extended on 19.06.2026 till 03.08.2026.

In the Misc. Case under Order 39 Rule 2A of the Code of Civil Procedure it has been alleged that the AGM of the defendant no. 2 company was held on 30.07.2026. It has been further alleged that the defendant company forwarded the voting results and the consolidated scrutinisers report dated 31.07.2026 in respect of all five resolutions that were placed before the said AGM. It is further stated that on perusal of the voting results and the consolidated scrutiniser’s report it appears that in respect of each of the five resolutions placed before the AGM the defendant no. 1 is shown to have cast votes against each resolution, the number of such votes being 3,16,200 i.e., exact number of shares comprising Block B of the scheduled shares lying in the defendant no. 1 sole demat account. It has been further alleged in the said Misc. Case that the scrutiniser’s report is completely silent as to the subsisting order of injunction dated 19.05.2026 as extended on 19.06.2026 whereby a restraint order was passed from counting of votes of the defendant no. 1 in respect of the entire share holding comprising the 38% equity shares claimed under impugned Form C of which 3,16,200 shares of Block B forms a specific and identifiable part. In the said Misc. Case under Order 39 Rule 2A the opposite party no. 1 apart from praying for an order of attachment of the property of the opposite parties and an order for detention in civil prison also sought for a mandatory injunction directing the defendant no. 2 to file a corrective disclosure before BSE clarifying that the votes of the defendant no. 1 are subject to subsisting order of injunction passed by the learned Trial Judge and have not been validly counted.

In the said Misc. Case, the opposite party no. 1 filed an application under Section 94 (c) and (e) of the Code of Civil Procedure praying for an ad interim order restraining the opposite parties from opposite parties of the Misc. Case from acting upon or implementing or giving any effect to any of the resolutions passed in the AGM held on 30.07.2026 including the reappointment of the opposite party no. 15 which was due to take effect from 12.08.2026. Pending disposal of the Misc. Case under Order 39 Rule 2A the opposite party no. 1 prayed for a direction upon the opposite party nos. 1 to 17 to enter personal appearance before the learned Judge on a date that may be specified by the learned Judge.

By the impugned order, the learned Judge directed personal appearance of the opposite party nos. 1 to 17 in the Misc. Case.

After going through the application under Section 94 (c) and (e) of the Code of Civil Procedure this Court finds that the ground on which the personal appearance is sought for is to enforce compliance of the orders passed by the learned Trial Judge.

The Hon’ble Division Bench in Jagjit Singh Khanna vs. Dr. Rakhal Das Mullick reported at AIR 1988 Cal 95 held that the expression “prescribed” in Section 94 would obviously mean, as defined in Section 2(16) of the Code of Civil Procedure, “prescribed by rules”. The rules which prescribe grant of temporary injunction are Rules 1 and 2 of Order 39 and therefore, a temporary injunction may be granted under Section 94(c) only if a case satisfies the requirements or Rules 1 and 2 of Order 39. The Court does not have two sources of power-one under Section 94(c) and another under Order 39 of the Code of Civil Procedure so that one may resort to one or the other as and when necessary. But under the Code of Civil Procedure the Court grants temporary injunction only under one set of provisions, namely Section 94(c) read with Order 39 Rule 1 and 2 of the Code of Civil Procedure.

After noticing the decision in the case of Jagjit Singh Khanna (supra) the Hon’ble Supreme Court in the case of Vareed Jacob vs. Sosamma Geevarghese & Ors. reported at (2004) 6 SCC 378 held that the source of the power of the Court to grant interim relief is under Section 94. However, exercise of that power can only be done if the circumstances of the case fall under the rules. Therefore, when a matter comes before the Court, the Court has to examine the facts of each case and ascertain whether the ingredients of Section 94 read with the rules in an order are satisfied and accordingly grant an appropriate relief. The Courts will grant temporary injunction if the case satisfies Order 39.

Order 39 Rule 3 of the Code states that 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. Proviso thereto states that where it is proposed to grant an injunction without giving notice to the opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by the delay.

It is now well settled that the Court shall have to record the reasons why an ex parte order of injunction was being passed in the facts and circumstances of a particular case. The requirement for recording reasons for grant of an ex parte injunction cannot be held to be a mere formality. A party which invokes the jurisdiction of the Court for grant of an order of restraint against the party, without affording an opportunity to him of being heard must satisfy the Court about the gravity of the situation and the Court has to consider such factors in the ex parte order. (See Shiv Kumar Chadha vs. Municipal Corporation of Delhi and Ors. reported at [(1993) 3 SCC 161 (paragraph 34-35)].

In the case on hand, the learned Judge on an application under Section 94(c) and (e) passed an ex parte order directing personal appearance of the opposite party nos. 1 to 17 in the Code of Civil Procedure on 03.09.2026.

No reasons have been recorded in the order impugned which prompted the learned Judge to direct personal appearance of the parties on 03.09.2026 by way of an ex parte order.

It is now well settled that there is a vast difference between enforcement of orders passed under Order 39 Rule 1 and 2 and orders made under the Contempt of Courts Act. Orders which are passed in contempt of court are made primarily to punish the offender by imposing a fine or a jail sentence or both. On the other hand Order 39 Rule 2A is primarily intended to enforce orders passed under Order 39 Rule 1 and 2 and for that purpose the civil courts are given vast powers which include the power to attach property, apart from passing orders of imprisonment which are punitive in nature. The Hon’ble Supreme Court noted that Order 21 Rule 32 of the Code of Civil Procedure provides for enforcement of a decree for permanent injunction. Order 21 Rule 32 provides for attachment of property and/or detention in a civil prison. Orders that are passed under Order 21 Rule 32 are primarily intended to enforce injunction decrees by methods similar to those contained in Order 39 Rule 2A. Thus, the object of Order 39 Rule 2A is primarily to enforce orders of interim injunction. (see Amazon. Com NV Investment Holdings LLC vs. Future Retail Ltd. & Ors reported at (2022) 1 SCC 209, paragraph-61).

The Full Bench of the Madras High Court in Century Flour Mills Limited vs. Suppiah reported at AIR 1975 Mad 270 held that where an act is done in violation of an order of stay or injunction, it is the duty of the Court as a policy to set the wrong right and not allow the perpetuation of the wrong doing. It was further observed that the inherent power of the Court is not only available in such a case but it is bound to exercise it to undo the wrong in the interest of justice by putting back the parties in the same position as they stood immediately prior to the service of the interim order.

A question fell for consideration before the Hon’ble Division Bench in the case of Sujit Pal vs. Prabir Kumar Sun reported at AIR 1986 Cal 220 whether the Court has inherent power to grant a temporary mandatory injunction to restore things to their former condition. The Hon’ble Division Bench observed that under Order 39 Rule 2A of the Code, the Court cannot grant immediate relief to a party. If the injury is grave and where restoring things to their former condition is the only remedy, the Hon’ble Division Bench held that the Court has to take steps in exercise of its inherent powers. The very object for which Order 39 Rule 2A has been enacted will be fulfilled by grant of temporary mandatory injunction by restoring things to its former condition.

The Hon’ble Supreme Court in Delhi Development Authority (supra) after reiterating the well settled proposition of law that a contemnor ought not to be permitted to enjoy and/or keep the fruits of his contempt noticed the decisions in the case of Century Flour Mills (supra) and Sujit Pal (supra) held that the Court must ensure full justice between the parties before it.

It follows from the aforesaid discussion that the Court in exercise of its inherent powers can direct restoration of things to its former condition in fulfilment of the object under Order 39 Rule 2A of the Code.

In the Misc. Case under Order 39 Rule 2A of the Code, the opposite party no. 1 sought for an order for attachment of the property of the petitioner no. 1 and the opposite party no. 2 herein and an order of detention in civil prison of the opposite party no. 1 herein, the petitioner no. 2 and the opposite party nos. 5 to 18. The opposite party no. 1 also prayed for mandatory injunction restraining the petitioner no. 1 company, its Board of Directors, Company Secretary from giving any further effect to the resolutions passed at the AGM held on 30.07.2026 and for a direction upon the petitioner no. 1 to file corrective disclosures with BSE Limited.

The instant suit is for a declaration that the Form C dated 14.11.2025 filed by the defendant no. 1/ opposite party no. 2 herein with the petitioner no. 1/company to be null and void and for permanent injunction from giving any effect to the impugned Form C.

By the order dated 19.05.2026 as recorded supra an ad interim order of injunction was passed restraining the opposite party no. 2 from exercising any voting rights or dealing in any manner with the schedule shares and the petitioner no. 1/company was restrained from giving any effect to the impugned Form C and from counting or giving any effect to the votes cast by the opposite party no. 2 in respect of the schedule shares.

The allegation made by the opposite party no. 1 in the application under Section 94(c) and (e) read with Section 151 is that in the AGM held on 30.07.2026, the opposite party no. 2 voted against all the 5 resolutions and the said votes were counted, tabulated and certified in the Scrutinizer’s Report and was reported to BSE by the petitioner no. 1 vide letter dated 31.07.2026.

The learned Judge returned a finding in the impugned order that the resolutions, upon exclusion of the votes cast by the defendant no. 1, would in any event stand carried.

The learned Judge may be right in observing that the fate of the resolution passed in the AGM held on 30.07.2026 is not relevant for deciding whether there was any breach of the order of injunction.

The question that arises for consideration is whether an order restraining the petitioner no. 1/ company from acting upon, implementing or giving any further effect to the resolutions passed at the AGM held on 30.07.2026 for a limited period could have been passed by way of an ad interim relief.

This issue shall be considered after hearing the parties at length.

There is no quarrel to the proposition of law laid down by the Hon’ble Supreme Court in B. Gurappa Naidu (supra) though that power of superintendence under Article 227 of the Constitution of India can be exercised where there is an unwarranted assumption of jurisdiction by a Court not vested with such jurisdiction or any case of gross abuse of jurisdiction. The power of superintendence may be invoked where there is an unjustifiable refusal to exercise jurisdiction vested in a Court. While exercising jurisdiction under Article 227 of the Constitution the High Court could not have acted as an appellate court or substitute its own judgment for that of the subordinate court to correct an error which was not apparent on the face of the record.

If the object of Order 39 Rule 2A is to enforce the order of injunction, this Court is of the prima facie view that a direction for personal appearance of the opposite party nos. 1 to 17 in the Misc. Case may not be necessary at this stage. Direction for personal appearance by an ex parte ad interim order without recording any reasons in support thereof cannot be supported by this Court.

The direction for personal appearance of the parties by an ex parte order without assigning reasons is against the proposition of law laid down by the Hon’ble Supreme Court as observed supra.

Since the learned Judge failed to record reasons for passing an ex parte order directing personal appearance of the parties, this Court is inclined to entertain this application under Article 227 of the Constitution of India and pass an interim order.

In Chuckles Kohli (supra) inspite of an opportunity being afforded to file reply to application under Order 39 Rule 2A of the Code of Civil Procedure, no reply was filed nor the costs have been paid. For such reason the Court directed the defendants to appear in person before the Court on the next date of hearing and imposed cost upon the defendants. The said decision being distinguishable on facts cannot come to the aid of the opposite party no. 1 in the case on hand.

This Court refrains from making any observation at this stage as to the applicability of the decision in the case of Krishna Gupta (supra).

There shall be an order of stay of operation of the portion of the order dated 04.08.2026 passed by the learned civil judge (Senior Division) first court at Alipore, 24 Parganas (S) in Misc. Case no. 200 of 2026 directing personal appearance of the opposite party nos. 1 to 17 in the Misc. Case till the end of the month of December, 2026 or until further orders which is earlier.

The petitioner is directed to serve a copy of this application under Article 227 of the Constitution of India upon the non-appearing opposite parties by registered speed post that acknowledgment due and file and affidavit of service on the next date.

List this matter in the monthly list of November, 2026.

It is however, made clear that pendency of this application shall not preclude the learned Judge from proceeding with the hearing of the Misc. Case and the connected application.