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Judgment
Amitava Roy, J.—Heard Mr. P.C. Deka, learned Sr. Counsel for the petitioner. None appears on behalf of the respondent. By order dated 15.5.1998 Rule was issued and in the interim, the impugned orders dated 17.2.1998 and 28.2.1998 were stayed. Notices were duly served on the respondent by registered post with A/D. None has appeared inspite of service of notice. The case being of 1998, I am not inclined to adjourn the case any further.
The facts in short are that the respondent had filed an application u/s 9 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the ''Act'') before the learned District Judge, Kamrup, Gauhati praying for a direction to the respondent therein, namely, ITC Classic Finance Ltd. to deposit a sum of Rs. 63,00,000/-to cover up the amount claimed to be payable by it to the present respondent. By the impugned orders, the learned court below directed the said ITC Classic Ltd. to deposit the aforementioned amount with the Nationalised Bank in the form of fixed deposit and to deposit the certificate in the court. The case was fixed on 20.3.1998 for filing necessary objection by ITC Classic Finance Ltd. on 28.4.1998, an application was filed by the present respondent alleging that the direction on contained in the order dated 17.2.1998 has been violated. The learned court below issued notice calling upon the ITC Classic Finance Ltd. to show cause as to why it should not be proceeded under the Contempt of Court Act, 1971. Both the orders are under challenge in the present petition.
The case of the petitioner as set out in the instant petition is that the ITC Classic Finance Ltd. is no longer an existing Co., which by virtue of orders dated 17.3.1998 and 20.4.1998 passed by the High Court of Calcutta had been amalgamated with it with effect from 21.4.1998. Though at the point of time, when the application was filed, respondent company was aware that steps for amalgamation had been taken, the petitioner was not made a party therein and the impugned order was passed ex-parte without affording any opportunity of hearing to it. The further contention raised is that the order dated 17.2.1998 has been passed mechanically without following the fundamental principles of law relating to grant of injunction and therefore the order dated 17.2.1998 is not sustainable in law as well as on fact. It has also been asserted that as the order dated 17.2.1998 is ex-facie illegal and passed behind its back, the order dated 28.4.1998 asking it to show cause as to why a proceeding under the contempt of Courts Act, 1971 should not be initiated is also not sustainable.
Mr. Deka, learned Sr. counsel has argued that apart from the fact that the orders impugned herein are patently illegal, the present petitioner being one of the premier Financial institutions of the country, passing of the impugned order by way of interim measure as contemplated u/s 9 of the Act was not warranted. He has argued that in the meantime, the petitioner had already submitted an application before the court below praying for impleadment and that in view, of the attending facts and circumstances the impugned order is liable to be set aside and the matter be remitted back to the learned court below for appropriate orders after hearing both the parties.
It is noticeable that though by order dated 17.2.1998, the ITC Classic Finance Ltd. which has now been amalgamated with the petitioner was directed to deposit the amount of Rs. 63,00,000/- and that the said order had remained stayed in view of the order dated 15.5.1998 of this court, no steps have been taken by the respondent to get the same vacated or modified. In the meantime 5 years have passed. The respondent has not appeared despite service of notice. Apparently, the order dated 17.2.1998 has been passed in a proceeding where the present petitioner was not a party. Further, the learned court below has not recorded any reason in support of the direction issued by it to the ITC Classic Finance Ltd. for depositing Rs. 63,00,000/- ex-parte. In absence of any reason, I am not inclined to affirm the same in the attending facts and circumstances of the case.
With regard to the order dated 28.4.1998, in my view, as the notice had been issued in allegation of wilful disregard to the order dated 17.2.1998, it is still open for the petitioner, as it has now stepped into the shoes of the ITC Classic Finance Ltd., to take steps in the said proceeding.
In view of the above, the order dated 17.2.1998 is hereby set aside and the matter is remanded to the learned District Judge, Kamrup, Gauhati for fresh disposal on merits. The learned trial court, before taking up the Misc. Arb. Case No. 57/98 would pass appropriate orders with regard to the impleadment of the petitioner and thereafter upon hearing the parties would pass necessary orders as may deemed fit and proper on the application u/s 9 of the Act. With regard to Misc. (J) Case No. 177/98, in which notice has been issued against the ITC Classic Finance Ltd. asking to show cause as to why it should not be proceeded under the Contempt of Courts Act, 1971, the present petitioner would take necessary steps in accordance with law. If that is done, learned court below would pass appropriate orders in connection therewith.
The revision petition is disposed of.