Kusvin Vyapaar Pvt. Ltd. vs Janardan Nirman Pvt. Ltd

Mr. Saptangsu Basu, learned senior Advocate appears on behalf of appellant and Mr. Ashok Kumar Banerjee, learned senior Advocate appears on behalf of the respondent.

This matter is listed pursuant to the order passed by the Hon'ble Division Bench dated 8th October,  2021 which reads as follows:-

"The matter is not in the list today.

On the prayer of the learned Advocate of the petitioner, let the matter be listed before the Vacation Bench on the first available opportunity."

The learned senior Counsel for the appellant submitted  that  the  Court  after  hearing  the  learned counsels had granted an interim order of injunction on 30th April, 2021. The operative portion of the order reads as follows:-

"On such consideration, we grant an ad interim order of injunction restraining the defendant from dealing with disposing of and / or removing the machine for a period of eight weeks or until further order, whichever is earlier. The defendant is also directed to disclose the present status of the equipment and its location of the  plaintiff without prejudice to their rights and contentions in the appeal."

The learned senior Counsel submitted that by virtue of the orders passed by the Hon'ble Division Bench from time to time and considering the Covid - 19 pandemic situation, the interim order which was granted by the Hon'ble Division Bench stood extended and the Hon'ble Division Bench by the order dated 30th April, 2021 directed all the interim orders, which were granted earlier, would continue for a period of eight weeks or until further orders whichever is earlier.

It is submitted that the present appeal had not been listed before the Court and therefore, the prayer was made before the Division Bench to list the matter on 8th October, 2021. Learned senior Counsel for the appellant seeks for extension of the interim order till reopening of the Court after the Puja vacation.

The learned Senior counsel appearing for the respondent vehemently opposed the prayer and submitted that there was no interim order in the interregnum and that the suit itself is not maintainable and consequently, an ex parte interim order could not have been granted and the respondent / defendant has filed an application for vacating the interim order where all the facts have been set out in great detail. It is submitted by the learned senior Counsel that the proceedings which were pending before the National Company Law Tribunal will have a direct bearing on the subject issue.

After elaborately hearing the learned Senior counsel for the parties, we are of the view that since the Hon'ble Full Bench had granted extension of the interim order, ends of justice would be met if appropriate protection be given to the appellant and at the same time addressing the concerns of the respondent and the matter be set down for hearing upon the reopening after Puja holidays.

The learned senior Counsel for the respondent submitted that upon ex parte order of injunction being granted, his client has been put to irreparable hardship and the machinery being Soilmec Hydraulic Drilling Rig the respondent is unable to put to use the machinery.

To test the correctness of the above submission, we have gone through the order passed by the Division Bench on 30th April, 2021 from which we find the injunction granted against the respondent is from dealing with or disposing of and / or removing the machine. The respondent / defendant was directed to disclose the present status of the equipment and its location as the Soilmec Hydraulic Drilling Rig could be moved to various location. Therefore, we find that the order of injunction does not prohibit the defendant / respondent from using the equipment and all that has been restrained is from dealing or disposing of the same which would mean to part with possession or to transfer possession sell or agree to sell etc. That apart, the direction issued by the Hon'ble Division Bench to disclose the status of the equipment and its location is also very germane having regard to the nature of the equipment. Therefore, we make it clear that the respondent / defendant would be entitled to use the equipment but shall not deal or dispose of or remove or dismantle the machinery and also simultaneously keep the appellant intimated about the status of the equipment and its location from time to time.

List the matter on 10th November, 2021. The interim order passed earlier as clarified above shall continue till 15th November, 2021.