The Corporation Bank vs Kotresh and Others

A.N. Venugopala Gowda, J.—Petitioner is the defendant and the respondents are the plaintiffs in O.S.21/2009 on the file of the Civil Judge (Sr.Dn.,) at Soraba.

Petitioner has its branch at Udri in Soraba Taluk, Shimoga District, which has been housed in the premises of one B.S. Lingaraju. The petitioner has been carrying on business in the premises of said B.S. Lingaraju for the past about 23 years. It is stated that, the premises is in a dilapidated condition and the petitioner is not in a position to carry on its business in the same premises and has been finding difficulties to safeguard the securities relating to the transactions of its customers of the branch. It is stated that the customers of the petitioner''s branch have also complained of inconveniences being caused due to the dilapidated condition of the premises and the petitioner apprehends that the premises may collapse at any time and that it has become impossible for it to carry on business of the said branch in the said premises. It is the case of the petitioner that, even the villagers had complained about the inconveniences caused to them in attending to their business in the said branch of the petitioner, to the Village Panchayath, Udri, which has passed a resolution dated 22.9.2008 recommending to the petitioner to shift its business to some other suitable alternate premises. The petitioner also states that its Regional Office has received complaints and the Deputy General Manager of the bank has deputed an architect to inspect and submit the report about the condition of the premises, who after inspection has submitted a report dated 13.11.2008. It is stated that, on account of the unbearable inconvenience being caused to the staff of the branch as well as to the customers to carry on business in the said premises, the petitioner has decided to shift its business to another alternate suitable premises at a distance of about 300 meters from the present premises and that it has entered into a lease agreement dated 7.1.2009 with the owner of the alternate premises and has paid the security deposit amount. The said B.S. Lingaraju and another filed O.S. No. 1/2009 in the Trial Court for a decree of permanent injunction to restrain the bank from shifting its business to any other premises and the said suit was dismissed as not maintainable. It is the case of the petitioner that, said B.S. Lingaraju has set up the respondents to file O.S.21/2009 in the Trial Court for decree to restrain the petitioner/defendant from shifting the said branch to the alternate premises. Along with the suit, respondents herein/ plaintiffs had filed I.A.2 for an order of temporary injunction restraining the bank from shifting its business. The learned trial Judge has passed an order dated 23.4.2009 directing both the parties to maintain status quo. The petitioner being aggrieved by the said order, has filed this writ petition.

This Court directed issue of emergent notice to the respondents/defendants. The petitioner''s counsel was also permitted to serve copy of the writ petition on the learned Counsel who appears for respondents 1 to 6 herein i.e., the plaintiffs in the Trial Court, with an intimation that this writ petition will be taken up for consideration on 14.5.2009. Accordingly, the petitioner attempted to effect service and it is stated in the memo dated 14.5.2009 of the petitioner that, the respondents refused to receive the notice. The petitioner has also filed the affidavit of one M. Nagappa, son of Gangappa, an advocate, with regard to his witnessing of the refusal by the learned advocate for the plaintiffs to receive the copy of the writ petition and the Annexures. By that as it may.

Today Sri S.S. Suresh and Sri V.V. Gunjal, learned advocates appeared on behalf of the respondents.

I have heard Sri B.C. Seetharama Rao, learned Counsel for the petitioner and Sri V.V. Gunjal, learned Counsel for the respondents on the merits of the writ petition.

Sri B.C. Seetharama Rao vehemently contended that, the learned trial Judge has committed illegality in passing the impugned order. Learned Counsel contended that, the suit itself is not maintainable and at any event no ad interim order by dispensing with the issue of notice could have been passed by the learned trial Judge and the impugned order is one passed in excess of jurisdiction and hence is liable to be quashed. Learned Counsel pointed out that, the suit filed by the owner of the premises itself having been dismissed and the litigation by the respondents being without any bona fides, keeping in view the resolution passed by the Village Panchayat dated 22.9.2008, the Court below has committed an error and illegality in passing the impugned order, which if allowed to continue would cause irreparable injury, hardship and inconvenience to the bank as well as to its about 5000 valuable customers. Learned Counsel contended that, the premises being in dilapidated condition which can be noticed from the photographs Annexures H1 to H3 and the securities of the bank being threatened on account of leakage and the condition of the building, the impugned order if allowed to operate any further, would cause irreparable damage to the petitioner and to its valuable customers and that the public interest shall also suffer.

Per contra, Sri V.V. Gunjal, learned Counsel contended that, the impugned order is an ad interim order, that if the petitioner is aggrieved by the same, it has the remedy of approaching the Trial Court for necessary relief and hence the writ petition is not maintainable. Learned Counsel contended that, in view of the availability of alternate remedy, this Court should not entertain the writ petition. He further contended that, the Trial Court having been satisfied with the existence of the prima facie case and the nature of the suit, has ordered the maintenance of status quo till disposal of I.A.2 and hence no case is made out for interference in the writ jurisdiction. Learned Counsel contended that, in the circumstances, the petitioner be granted liberty to approach the Trial Court for relief if any and that the writ petition may be dismissed.

Sri V.V. Gunjal however agreed that, the impugned order though is one directing maintenance of status quo, is one passed on an application filed under Order 39 Rs. 1 and 2 CPC and hence, is an order of temporary injunction.

Having heard the learned Counsel for the parties, the point for consideration is,

Whether the Trial Court has exercised its jurisdiction in accordance with law or is there an apparent illegality in passing the impugned order?

The Court by an order can grant temporary injunction in exercise of jurisdiction conferred under Rs. 1 and 2 of Order 39 CPC, wherein it is proved by affidavit or otherwise that the property in dispute which is the subject matter of the suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree or that the defendant threatens, or intends, to remove or dispose of his property with a view to defraud his creditors and that the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit or in cases relating to committing of a breach of contract or injury of any kind. In such cases, the Court before granting injunction, should direct the notice of application in respect of the relief to be given to the opposite party, except where it appears that, the granting of the temporary injunction would be defeated by delay. Proviso to Rule 3 of Order 39 CPC empowers the Court to grant an injunction without giving notice of the application to the opposite party by recording reasons for its opinion to the effect that the object of granting the injunction would be defeated by delay. If it proposes to grant an injunction after recording reasons, what should follow, has been provided in Clauses (a) and (b) of the proviso to Rule 3 of Order 39 CPC.

The relevant portion of the impugned order reads as follows:

Further having perused papers and heard on IA2 under Order 39 Rules 1 and 2 CPC. Upon perusal of plaint papers and order on IA1 under Order 1 Rule 8 CPC, in view of nature of suit, it appears a prima facie case in favour of plaintiffs at this stage. Accordingly this Court orders both parties to maintain status quo till disposal of IA2.

It is apparent that, the Trial Court has failed to give effect to the mandatory requirements under Rule 3 of Order 39 CPC. No reasons have been recorded for granting the injunction order by dispensing with the notice of I.A.2 to the defendant. Hence it has passed the impugned order in excess of its jurisdiction. The illegality in passing the impugned order is apparent, since the impugned order in exercise of the jurisdiction under Order 39 Rs. 1 and 2 CPC, has not been passed by following the mandatory provisions of Rule 3 of Order 39 CPC. Since the impugned order is illegal, the same cannot be sustained. The defect in the impugned order is incurable.

In the said view of the matter, it is unnecessary to record any findings with regard to the rival contentions advanced by the learned Counsel for the parties.

In the result, I pass the following:

The order dated 23.4.2009 passed on IA.2 in O.S.21/2009 by the learned Civil Judge (Sr.Dn.,) at Soraba, is hereby set aside.

In the circumstances of the case, parties are directed to bear their respective costs.